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Report
1 January - 31 December 2000 |
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I.
Trends of year 2000: topical issues from the aspects of constitutional rights
and the rights of minorities
1.
The situation of the rights of minorities in view of Hungary’s EU accession
The report by the Parliamentary Commissioner on year 2000 - the fifth such report produced so far - offers an especially good opportunity for a general assessment of the situation and for a review of the almost 6 years of the operations of the minority ombudsman.
The wealth experience accumulated during the decade since the system change, the first ten years of the local governmental system calls on us too to draw up a balance, re-consider our accomplishments and learn from past mistakes.
From the aspect of the rights of national and ethnic minorities mention should be made first of the fact that in the wake of the amendment to the Constitution and the adoption of the act on minorities the Republic of Hungary undertook to guarantee the ensuring of these rights and has created the necessary organisational framework for the enforcement of the law. The year 1994 saw the establishment of the system of minority governments.
The legislator intended to provide a wide ranging autonomy in terms of education and culture for the various ethnic groups living in Hungary as minorities - as regards the numbers of individuals belonging to such groups - decelerating their assimilation and enabling them to preserve their national, language and historical features.
From a six year perspective it is now possible to consider whether this was the only possible and exclusively appropriate way to ensure the right to self-governance. In other words, whether instead of the placement of the institution system on the foundations of the public law and its connection to the local governmental system, it would have been more appropriate to provide assistance to minority communities as so-called ‘civil organisations’ falling under the act on the right to set up associations.
In our view development should primarily take the form of filling the minority government’s system with real contents, i.e. if minority communities can actually make their own decisions, operate and maintain institutions and are granted real opportunities for preserving their identity.
On the threshold of the new millennium the enhancement of minority rights is also especially important for this may at the same time be one of the fundamental requisites for Hungary’s EU accession. The document called ‘Agenda 2000’ makes it quite clear that only a country where minority rights are respected, where there are no ethnic tensions, will be given a chance to join the European Union.
The tragedy of the recent Balkan war is a dramatic reminder for all countries in the region that Europe is not free from ethnic conflicts.
Over recent years in a number of countries of East-Central-Europe - including Hungary - attention had to be focused on unresolved problems of the situation of the Roma minority. Discrepancies and tensions originating from impoverishment, unemployment and the deficiencies of the institution system in charge of the provision of social benefits and services. These problems have been casting a shadow on the emerging and - apparently - consolidating democracies.
Migration of individuals and groups of the Roma minority from Bulgaria, Romania, the Czech Republic, Slovakia and Hungary as well, towards welfare states with liberal rules on asylum seekers. The all too well known results include visa systems introduced by Canada and some Scandinavian countries with respect to some of our neighbour countries while certain Roma families from the village of Zámoly have applied for political asylum in France. The French authority has not made its decision yet, however, this event goes far beyond the question whether a handful of people are granted asylum or not. According to the Geneva Convention on asylum an individual who was ‘persecuted’ in his home country for his political views, religion or membership of a minority community or who is subject to a real threat of such persecution may be granted asylum. There is a valid deportation agreement between Hungary and France by the conclusion of which the contracting states have agreed to recognise each other as ‘safe country of origin’. Despite the bilateral agreement it is not yet known how the French authority will decide with respect to the question of the Roma families who left the village of Zámoly. However, the mere fact that Hungarian citizens have applied for asylum in an EU member state on account of their persecution in Hungary, is considered by many as a sign of some fundamental problems. (Another such sign is that according to statistics disclosed by the Canadian immigration authority almost two thousand Romas from Hungary apply for asylum in Canada and Hungary is the third in this order, preceded only by Pakistan and Sri Lanka.)
Racism and xenophobia are not unfamiliar terms in West European countries either. The Union is highly sensitive to any extreme development within its own member states as well, indeed, even to any distant possibility of such - as has been witnessed on the example of Austria.
This may be one of the fundamental reasons for the adoption on 29 June 2000 by the Council of the European of the Directive No. 2000/43/EC covering specifically the application of the principle of equal treatment ‘independent of racial or ethnic origin’, despite a general ban - as a positive statute of law - in the European Union and in Hungary of negative discrimination.
Is there a real reason for the introduction of separate acts of law specifically aimed to ban ethnic discrimination? Our answer to this question - in line with the above directive - is a definite yes. We do not dispute, though, that the guarantees for equality irrespective of religion, gender, opinion and social status, should also be laid down in law, however, an ethnic approach does indeed have specific features that justify separate regulation of the questions of discrimination. So far each of the annual reports of the Parliamentary Commissioner in charge of Minority Rights has pointed out that there is no deliberate exclusion policy in Hungary against any domestic ethnic minority in Hungary in respect of the entirety of state, local governments and their institution systems. Discrimination, however, appears in a large variety of forms in day-to-day life, and it cannot be simply disregarded. The question is, therefore, whether the state is capable of protecting its citizens.
The problem of discrimination appears in a particularly salient form in respect of the Roma communities and their members. It is a fact that the Roma minority in Hungary experiences and often resigns to its position in life burdened by multiple disadvantages - including unemployment, social uncertainty - as part of the fate of a member of a minority community. Consequently, there is a kind of a voluntary segregation - dissimilation - which, in many cases, takes the form of complete separation from the rest of the members of the society.
In view of the requirement of the necessity of preserving identity, efficient social integration of the Roma population - based on the principle of mutual benefits and interests - is not an easy task, and it is not, in particular, a task that should be expected to be carried out quickly.
A pre-requisite for the application of positive discrimination is actual sanctioning by the Republic of Hungary of negative discrimination - as has been ‘promised’ in Article 70/A (3) of the Constitution. This should involve taking actions both in legislation and in law enforcement that are required and that are regarded as practicable to the prevent and eliminate negative discrimination and to remedy violations caused by negative discrimination.
In consideration of the above facts, the parliamentary commissioner for the rights of minorities still faced a lot of difficulties in year 2000.
The majority of our complainants - more than 60% of them - belonged to the Roma minority who turned to the ombudsman for the minorities in their ultimate despair, in the hope for a positive turn in life.
It should be regarded as a fact that Hungary is not one of the welfare states as the term is applied in West-European counties and the enforcement of the right to social safety as specified in Article 70/E of the Constitution does not resolve all problems either. For one of the recent decisions passed by the Constitution Court declared that the above mentioned provision of the Constitution imposes an obligation on the state to provide social services only in a very limited range of areas, including for instance the obligation to provide access to a dwelling for everyone, whereas in order to enable the application of the constitutional provisions guaranteeing the right of local governments to their assets and property it has become simpler than ever to evict part of the unentitled occupants - so called ‘squatters’. Unfortunately, those belonging to the Roma minority make up a very high proportion of evicted families and individuals, as a result of which essentially social/welfare related problems appear in the form of problems specifically related to ethnic minorities.
In year 2000, therefore, the activities of the parliamentary commissioner for the rights of minorities had to be pursued under highly contradictory circumstances. The situation and circumstances of the Roma population - which is the largest ethnic group in Hungary facing more severe problems than any other minority group - has not changed in to the necessary extent in the required direction. Consequently, the dissatisfaction that has been experienced in the Roma minority has been and is being expressed increasingly markedly and prominently, which is probably aggravated by the focusing by the media primarily on negative events - atrocities in some cases.
2.
International efforts of the protection of minorities around the turn of the
millennia
The recent years have brought about substantial changes in the area of the protection of minorities on an international plane. The issues has increased in importance in respect of the relationships among European countries, resulting in important documents, regarded as worthy of taking into account in Hungary as well. International crisis centres and conflict situations have brought about substantial changes in the operations of international organisations. The number of human rights committees, commissions for the protection of minorities, international monitoring and controlling systems has increased. At the same time the roles undertaken by representations, structures and individuals dealing with the question in multilateral diplomacy have also been strengthened (examples include the establishment of the institution of the high commissioner for human rights in the UNO, in the Council of Europe and the intensification of human rights related activities in the European Union). The action against old and new forms of racism, xenophobia, anti-Semitism and intolerance has also attracted increasing political attention, new organisation forms and international forms of activities.
The theses of the basic ideas of international law and doctrines relating to the right of minorities have attracted attention, indeed, the dramatic events of the Balkan war originating in essence from ethnic conflicts, have lead to a turning point in the international relationships of the states concerned. A new concept of humanitarian rights and intervention - in contrast to the philosophy of non-intervention based on the unconditional respect to sovereignty - very substantially increased in importance on account of the demand for the prevention of wholesale violations of the law.
Over recent years the European Union has taken numerous actions to protect minorities in a broader sense and to create and strengthen equality of opportunities and equality of minorities. The Treaty of Amsterdam introduced new regulations on the relationships between and among Member States, highlighting and giving a new interpretation to the conceptual and political relationships within the Union and further refined the anti-discrimination rules. The EU adopted an appropriate and promising directive on this issue, imposing the obligation to comply with the rights of minorities not only on current Member States but also on candidate countries.
The well known conflict between the European Union and Austria was a special and warning example, an episode offering many lessons to draw, which also highlighted the primary European trends prevailing in the judgement and treatment of minorities.
The Council of Europe has entered a new and highly important phase of its activities in the protection of minorities. The Framework Convention aimed to ensure the Protection of National Minorities and the European Charter of Regional and Minority Languages are two special international legal documents. They are practically unparalleled from the aspect that they stipulate the application and enforcement of comprehensive mandatory principles and criteria covering the whole of the area of the protection of minorities, in order to ensure respect and implementation of a wide range of powers in the protection of minorities. Under the Framework Convention of the Council of Europe the task of the preparation of regular country reports has been commenced as prescribed in the Framework Convention.
The first on-site inspections have been carried out by the Consultative Bodies in charge of the supervision of compliance with the agreements in six countries so far. Based on the findings of the inspections the Committee of Ministers of the Council of Europe has prepared recommendations for the governments of the Member States concerned, to improve the general and specific situation of the various minority communities and ethnic groups. This process is creating democratic frameworks for the review of the conditions of responsibility in the Member States.
The efforts made by the Council of Europe are clearly reflected by the establishment in 1995 of the Committee against Racism and Intolerance, which, besides issuing general recommendations and performing international activities, discloses country reports at certain intervals based on its dialogues with governments and autonomous organisations of the Member States and on its observations.
The documentation and monitoring centre in Vienna has been established as a result of the co-operation between the European Union and the Council of Europe. The centre records instances of racism and xenophobia, it organises and information network and prepares concrete and practical proposals. The headquarters of the European Monitoring Centre on Racism and Xenophobia was inaugurated in April 2000, its first yearbook was published in December.
The Hungarian ombudsman for minorities is a member of the supervisory board of the Centre, thus he has up-to-the-minute information on international experience and expectations.
From among the large organisations and institutions involved in the protection of minorities in Europe the role of the OSCE and that of the high commissioner of the EU Commission in charge of national minorities has been growing in importance. Over recent years the activities of the high commissioner has been increasingly focused on the assessment of the situation of the Roma minority. Mention should be made from this aspect of a document published in April 2000 which provides detailed information on national experience relating to the European Roma communities in a breakdown by country.
Over the past 12-18 month period the diplomatic activities of the UNO aimed to fight racism, xenophobia and anti-Semitism have also intensified, as is reflected by the organisation of a series of international events. The UNO is planning to organise a global conference against racism in the autumn of 2001. In preparation for the global conference the various continents will review the situation of human rights in separate conferences. (The conference against racism in Europe took place in Strasbourg in the autumn of year 2000.)
In the human rights related operations of the UNO, therefore, emphasis laid on actions for the protection of minorities, fighting against racism has been increasing, even if only slowly and not very spectacularly. The UNO rapporteur in charge of issues of racism has visited Hungary on several occasions and he devoted a separate report to the situation in the Central European countries, including Hungary. The ombudsman has been devoting increasing attention to dealing with various aspects of the situation of the Roma minority even in his international activities. The main reason for this is that the problems of the largest European minority have grown beyond the borders of individual countries - primarily those of East-Central-Europe - and the unifying Europe simply cannot afford not to devote efforts to the integration of the Roma minority even on the level of international co-operation.
This is proven by the annual reports of the EU Commission on human rights, it country reports evaluating the performance of the candidate countries and the assessments and fact-finding documents of the EU Commission and the Organisation for Security and Co-operation in Europe. The historical disadvantage of the Roma minority, its current exclusion and difficulties of integration impose a disconcerting complexity of problems on the work of governments and international organisations. This is one of the reasons why the relevant Hungarian experience is viewed with such avid interest across Europe.
II.
Right of minorities to identity and self-governance
Pursuant to Article 7(1) of Act No. LXXVII of 1993 on the rights of national and ethnic minorities (Nektv.) ‘the assumption of belonging to a national, ethnic group or minority and its declaration is an exclusive and unalienable right of the individual. No one shall be obliged to make a statement concerning belonging to a minority group.”
Act No. XXXIV of 1999 promulgated the ‘Framework Convention of the Council of Europe on the Protection of National Minorities’ signed on 1 February 1995 in Strasbourg (hereinafter: Framework Convention). Article 3 (1) and (2) of the Framework Convention - in line with the provisions of the Nektv. - provides as follows::
“1. A person belonging to a national minority has the right to freely chose whether to be treated as one belonging to a minority or not and shall suffer no disadvantages resulting from such choice or from the exercising of rights relating to such choice.
2. A person belonging to a national minority shall exercise the rights and freedoms arising from this Framework Convention individually or collectively, with others.”
In our view - in accordance with the wording of the Nektv. - it is important that ‘assumption of’ identity is distinguished from ‘choosing’ identity. Assumption cannot mean other than ‘testifying’ a given existing quality, an objective feature, based on voluntary decision of will. By contrast, the possibility of ‘choice’ would mean that anyone has the right to choose any identity from a ‘range of available identities’ as befits his or her liking, which would raise concerns from among the aspect of the exercising of the rights of minorities even if the Nektv. recognises the possibility of choosing double or multiple identities.
However, the rule comprised in Article 3(1) of the Framework Convention provides that it is a right of a person belonging to a national minority to decide whether to be treated as one belonging to the minority or not.
Upon the preparation of the act on minorities the legislator’s intent was clear. Partly for historical reasons, partly in view of previous cases of abuse, the legislator intended to avoid a situation where the state has registries on the basis of which it is possible to approximately establish the ethnic composition of the population and where the data comprised in such registries can be used for taking discriminative measures. It should be noted that no positive discrimination may be applied without registration - based on mere estimates. Such information is missing primarily in the elaboration of employment programmes for the Roma minority.
The enforcement/exercising of the self-governance rights of minorities provided for by the Framework Convention also gives rise to practical problems for the assumption of minority identity in a society, the choice of being treated as such, provides rather relative freedom where the individual is treated as belonging to a minority irrespective of his or her expression of will based on objective criteria or only on the basis of mere assumptions.
The right to assume one’s identity as provided for in Article 7(1) of the Nektv. cannot be fully exercised despite the absolute terms used in the wording of the law. In order to ensure the education, cultural etc. autonomy provided by law or in order to exercise the right of self-governance of minorities, those concerned still have to make declarations concerning their belonging to a minority group. (Some people argue that the legitimacy of the whole of the system of minority self-governments is undermined by the fact that all Hungarian electors may vote in the elections of minority governments - not only members of the various minority communities - based on the principle of the universal right to vote.)
An ad hoc committee specifically established for the amendment of the legislation on minority issues was working in 1999 and even in the first half of 2000 within the committee of the Hungarian Parliament in charge of human rights, issues relating to minorities and religions with the involvement of the minorities’ ombudsman and his staff as invited experts.
In view of the lessons drawn from the local governmental elections in the autumn of 1998 we consistently asserted the position that in order to clarify legislation on minorities, to improve the transparency and consistency of the rules the laws on the establishment of minority self-governments should be amended.
It should be noted that we even considered the introduction of a kind of an absolutely voluntary (‘soft’) registration or, more precisely, a suffrage census as a possible solution, however, we had to admit that fears relating to such a solution made it impossible to influence legislation in this direction.
Nevertheless, the compromise proposal expressed by the committee does give rise to some hope. In close co-operation with the competent organisations of the government it was proposed by the committee - and supported by the majority of political parties - that local governmental elections and the elections of minorities local governments should be separated in time. This would not violate the principle of universal suffrage and it would make it possible for Hungarian citizens assuming identity with one or another minority community to express their political activities and will at the elections of minority self-governments.
Besides the entry into force of the above mentioned Framework Convention new aspects may be raised - concerning the question of registration, among other things - by the European Charter of Regional or Minority Languages (hereinafter: Charter). Both international legal document provides that the Member States of the Council of Europe should apply effective actions to promote the survival of regional and minority languages whose speakers constitute minority communities within the countries concerned. Thus for instance, the Charter offers protection to education in minority languages and provides for the official use of minority languages in proceedings relating to the administration of justice as well as in proceedings of public administration authorities and organs of public services.
Although Article 3 of the Act ratifying the Charter assumes specific commitments concerning the Croatian, German, Romanian, Serb, Slovak and Slovene languages, yet it should be considered whether the rest of the national minorities covered by the act on minorities should not vindicate similar rights. Pursuant to the provisions of the Nektv. - which provides equal rights to national and ethnic minorities living in Hungary - any restriction of the objective scope of the Charter based on purely legislative considerations, may give rise to some concern.
For in the establishment of additional rights - with respect to the implementation of the obligations undertaken in the Framework Convention - some answer will have to be found, sooner or later, to the question of whether the introduction of actions entailing very substantial costs, such as the application of forms in foreign languages in certain official procedures, the posting of sign boards in multiple languages in municipalities and public places etc., would be justified by the numerical proportions of the various minorities within the population as a whole. Another aspect to be considered in this respect is that the various minorities have different needs, depending on the degree of their assimilation.
The second paragraph of Article 10 of the Framework Convention declares that ‘in areas traditionally populated by representatives of a minority community or where there is a large number of individuals belonging to minority, if such people so require, or if such desire meets the actual requirement, the Parties shall make efforts to ensure - as far as possible - the availability of the requisites facilitating the use of the language of the given minority between such individuals and the public administration authorities”.
The third paragraph of Article 11 of the Framework Convention enables the posting of sign boards of traditional names of municipalities, streets and other geographical designations in the languages of the minorities concerned, in districts where ‘there is a large population of individuals traditionally belonging to national and ethnic minorities ... if there is an appropriate need for such sign boards’.
Finally, the second paragraph of Article 14 of the Framework Convention calls for the provision of opportunities for the learning of the languages of minorities and for participation in education in minorities’ languages ‘in areas traditionally populated by large numbers of individuals belonging to minorities, if appropriate need for such is expressed’.
The above provisions - enacted in Hungary as well - make it clear that the exercising of rights of minority communities and their individuals is not possible without the undertaking and declaration of belonging to such minorities and it is difficult to interpret what is to be mean by ‘populated by large numbers of individuals belonging to a minority community’.
In summary, the problem of ‘registration’ cannot necessarily be disregarded or cannot be disregarded without any concern for the undertaking and declaration of belonging to a given minority is a necessary pre-requisite for the exercising of a variety of rights provided for various minority communities and the governmental decision making process itself and the practice of providing task-proportionate funding necessitate more specific and more precise information than what is available today. Another problem that needs to be tackled results from the actual social weights of, the numbers of individuals belonging to the various minority communities, especially if it is accompanied by political requirements such as the resolving of the problem of representation in Parliament.
It is a well known fact that in the course of the local governmental elections in the autumn of 1998 the number of minority self-governments almost doubled. This change, however, did not originate from demographic reasons. (It is not possible to automatically draw conclusions from the mere number of minority self-governments concerning the proportion - or the growth of the proportion - of minority communities within the total population.)
What should, however, be pointed out as a fact is that the ‘minority friendly’ nature of a state, the standards of the provision of rights for minorities cannot be measured by the number of actually established minority governments. This is particularly so, if the rights of self-governance of minorities are rather formal, if they are not accompanied by real, effective legislative conditions enabling the enforcement and exercising of such rights.
III.
Topical problems of the education of
minorities
1.
The situation of education of ethnic minorities, from the aspect of teacher training
The standards of the education of minorities - whether or not they are satisfactory - are determined primarily by the provision of the personal and material requisites of education.
The idea and practice of multiculturalism were not ‘invented’ in Europe. They have come from countries where society and culture were developed by immigrants (Canada, Australia, the United States of America).
The spreading in Europe of the concept of a multicultural society results from the fact that following the break-up of colonial empires and in the wake of World War One and World War Two ethnic, linguistic, religious etc. diversity evolved in almost each of the countries of Europe. Education is the best measure of the acceptance of multicultural (intercultural) values.
In a broader sense, the education of ethnic minorities is part of the concept of multicultural education but it is also different from one important aspect. Ethnic education extends only to ‘native’ and only linguistic minorities, i.e. communities whose social position and culture do not fundamentally differ from those of the groups of society making up the bulk of the given society.
The essence of the education of ethnic minorities is the collective exercising of the appropriate rights by the various ethnic minorities, enabling the preservation of the mother tongue, identity, culture - including religion and way of life - of the various communities. Various practices have evolved in the various countries of Europe: in some countries it is considered essential for the purpose of integration of minority groups that those not speaking the official language of the state are helped to ‘catch up’ which is necessarily accompanied by the acceleration of assimilation processes, but which, in principle, does not exclude the possibility of preserving the mother tongue and the culture of a minority community. In the territory of certain states there actually are indigenous ethnic groups, such as Lapps and Sorbs, who had been present in their respective regions even before the establishment of the nation states.
The population of Hungary and the populations in neighbouring countries are special ‘mixed’ populations, as a result of migration and the frequent modification of the borders in the wake of the wars waged in this region over past centuries. In these countries it has to be considered and judged on a case-by-case basis, what ethnic minorities are considered as ‘indigenous’ and what communities are granted collective rights providing education and cultural autonomy. (It is well known that in Hungary ethnic communities living in Hungary for at least a hundred years are considered by the act on minorities as minorities recognised by law and vested with specific privileges.)
In Hungary it is possible in principle to organise separate ethnic minority schools or classes in schools (learning groups) for according to the act on public education minority education may be organised based on a collective request made by eight parents together. The following is a review of whether the objective - practical - requisites are available for the exercising of this right.
In our reports on recent years we gave account cases where local governments in charge of maintaining education institutions of ethnic (minority) communities had made attempts to close such institutions saying that there is a shortage or lack of ethnic minority teachers. Our inspections performed in such cases revealed that such attempts to close schools of minority communities were actually aimed to save money, but it was definitely more effective to argue with the often real shortage of teachers of minorities, and it was often more difficult to refute by the minority self-governments concerned.
To ensure the availability of the requisites for the education of minorities, the act on minorities itself contains numerous provisions with conditions concerning continued (higher) education of people belonging to minorities in their ‘mother countries’ as well as concerning the employment of so called ‘guest teachers’, that are, in principle, easier to meet. Our assessment of the higher education system which was launched in the autumn of year 2000 aims to identify, among other things, whether there is a sufficient supply of teachers for the various minorities and whether the state really promotes such endeavours of young people intending to go in for higher education.
According to our initial findings the situation of the training of teachers for the German minority community in Hungary is considered as of relatively appropriate standards, despite the fact that there has been a shortage, for decades, of teachers specialised in the teaching of various subjects in German. Accordingly, the training of German language teachers is the only area that is considered to be satisfactory, but the reason for this is not that the state gives specific preference to this training, rather it is due to the fact that German proficiency is a valuable asset in the labour market. Consequently, there is an unfortunate trend in that there is a very large proportion of those leaving the profession, i.e. those with excellent German language proficiency often give up their jobs as language teachers to take on positions with businesses where salaries are higher.
According to data provided by the Ministry of Education - and information collected in the course of our own survey - there is no training in any one of the teacher training institutions that would be aimed to enable teachers to teach certain subjects (e.g. mathematics, biology) in the language of a particular ethnic minority. Teachers of ethnic minorities are trained in Slovak, Romanian, Serb, Croatian, Slovenian and German languages, while philologists are trained in Bulgarian, Greek, Ukrainian and Polish.
At present there are 510 students in Hungary in secondary, primary and kindergarten teacher training in 8 higher education institutions in Hungary.
2.
Questions of the education of the Roma minority in their own mother tongue
The situation of the Roma minority - the minority with the most individual and most particular problems - differs from that of other ethnic minorities in the area of the rights of education as well.
The Roma minority - like all other minorities - is also covered by the scope of the Nektv. i.e. in principle it has the same rights, they can claim similar opportunities for the preservation of their mother tongue and for the participation in education in their own mother tongue. Nevertheless, fundamental personal and material requisites of education in the mother tongue of the Roma minority are not available.
It should be noted with respect to the education of the Roma minority that the mother tongue of the majority of the individuals belonging to this community is Hungarian, in contrast to members of other minority groups.
Education in the mother tongue has been introduced even in the case of national minorities only in the education of some classical subjects. In respect of the Roma languages, however, it should be pointed out that no primary, nor secondary education is conducted in such languages and we are not cognisant of Roma teacher training either. (Although the teacher training syllabuses of romology courses in some universities and colleges do provide basic Roma language training, the teachers taking romology courses could, by no means, teach mathematics, history, geography, biology etc. in the Roma language.)
According to some experts this would not even be possible in view of the vocabulary as presented in the Roma-Hungarian and Hungarian-Roma dictionary that is available in Hungary. According to other - also teacher - experts it would be possible to lay down the foundations for a Roma language - following the pattern of the Romanian language reform that took place in the 19th century - whose vocabulary could be suitable for teaching in the mother tongue at least in some classical subjects such as literature, grammar, history.
The majority of complaints received from representatives of the Roma minority concerning education have been aimed at unlawful practices in the organisation of Roma minority education resulting in segregation.
Until recently the ombudsman in charge of the protection of rights of minorities has not received any submission pertaining to the lack of education in the a Roma language. In October 2000, however, a complaint was submitted by a Roma minority self-government, claiming that despite the expressed demand, the municipal government failed to organise education in the mother tongue of the local Roma minority.
In accordance with the act on minorities the act on public education ensures equality in law in the area of education for all domestic minorities. Accordingly, a student belonging to a minority community is entitled to learn about, cultivate, enrich and pass on his mother tongue, history, culture and traditions and to participate in education and cultural activities in his mother tongue.
Subjects relating to the Roma minority constitute a standard element of the Roma minority education, however, the teaching of languages spoken by the Roma communities is not a mandatory part of the programme. Nevertheless, if so requested by parents, the teaching of the language spoken by Roma communities (Romanes or Beás ) have to be ensured.
However, the personal and material requisites of the teaching of the Romanes and Beás languages and of teaching other subjects in these languages, are not available at present.
In the framework of teacher training future teachers may learn elements of romology in various forms - at specialised departments, groups in departments or in special colleges. In the case of romology training, however, Roma - Beás - language is not a mandatory subject. At present language teaching is provided at only four higher education institutions in Hungary within the framework of romology training. Accordingly, no arrangements have been made concerning the training of large numbers of teachers speaking these language and under such circumstances there are practically no teachers to teach Romanes or Beás language. According to data made available by the Ministry of Education there are only two secondary schools in Hungary where Roma languages are taught.
Roma language training and education in the Roma languages is not only hindered by the lack of teachers belonging to the Roma minority. The material requisites are not available either: there are no textbooks or other teaching aids that are indispensable for the implementation of such programmes.
Besides the deficiencies in personal and material requisites the current status of the languages and dialects - that have not been standardised - also hinder the teaching of such languages. The rules of the written versions of the Roma language have not yet been fully established.
It should be noted, however, that the Roma minority has the same rights with respect to education in the mother tongue as other minorities.
The ombudsman in charge of the protection of rights of minorities has reviewed what the Hungarian state has been doing to ensure the enforcement of this highly important right. The Ministry of Education has informed us that two working committees have been set up within the ministry, comprised of linguists, to elaborate the system of requirements pertaining to the Romanes and the Beás languages, and to work out frame syllabuses for these languages. This will then be followed by the development of the necessary aid materials, dictionaries and textbooks.
Accordingly, it will take lengthy preparations to introduce a system for the teaching of Roma languages and for general education in the Roma languages, a language reform and the development of the books and other materials required for teaching are indispensable pre-requisites for the satisfaction of such demands.
It should also be noted that Act No. XL of 1999 promulgating the European Charter of Regional or Minority Languages - adopted in Strasbourg, on 5 November 1992 - does not fully meet all of the provisions of the Nektv stipulating the equality of rights of minorities, for Article 3 of the act declares the commitment undertaken by Hungary only with respect to six languages, i.e. the group of beneficiary minorities does not include each of the 13 Hungarian national and ethnic minorities.
Also, to give a complete picture, mention should be made of the fact that some countries that have joined the Language Charter, have also undertaken to comply with the obligations specified in the international agreement with respect to various varieties of the languages spoken by Roma communities.
Hungary could learn from the experience of European countries performing the above tasks concerning large scale language teaching and the introduction of teaching of general subjects in native languages for the Roma communities as well.
With respect to education of the Roma minority, therefore, it should be repeatedly pointed out that only one concrete complaint has been submitted to our office concerning the lack of language training which does not necessary mean that there is no such demand among members of the Roma minority. The Hungarian education system, however, has not yet got prepared for the satisfaction of any such demand.
In view of the current position and standards of the education of the Roma community - as will be discussed later in this paper - it is fairly safe to state that there is a real threat that the Roma communities — the largest and most ‘pan-European’ minority – will sooner or later lose its mother tongue both in Hungary and in the majority of the countries of Europe.
3.
The past six years of the education of the Roma minority,
or
can the education of the Roma minority legalise segregation?
No. 32/1997. (XI. 5.) MKM Decree issued by the Ministry of Education - on the issuance of the ‘Guideline on the education of children of national and ethnic minorities in kindergarten’ and the ‘Guideline on the education of members of national and ethnic minorities in school’ - specifies the contents of the education of the Roma minority as follows:
“1. The education of the Roma minority provides the possibility for Roma students to learn the cultural values of the Roma community, its history, literature, fine arts, musical and dance culture and traditions. The learning of the Roma language is a voluntary element of this programme, but based on demand expressed by parents it ensures the teaching of the variety of the Roma language spoken by the individuals concerned. Education shall facilitate success of Roma students in school and alleviate any possible disadvantages faced by students belonging to the Roma minority. It shall provide for the teaching of facts concerning the position, rights, organisations and institutions of the Roma minority. With the aid of means of pedagogy - without expecting assimilation - it shall promote the integration of members of the Roma minority.
2. The teaching of aspects of the culture of the Roma community as a nation and the development of skills promoting success at school are mandatory tasks in the education of the Roma minority. Furthermore, depending on the level of knowledge of students, their skills and ethno-cultural backgrounds as well as the possibilities of the schools the education of the Roma minority shall include at least three of the following five items:
a) development of children in respect of subjects taught at school;
b) development of self-knowledge of the minority community;
c) socialisation and communication development;
d) cultural activities for the members of the Roma community organised on a permanent basis;
e) fostering of individual talent.
3.
a) In the area of the teaching of the Roma language the provisions concerning traditional forms of education of minorities shall be applied.
b) Where no Roma language is taught in the school the areas of pedagogy chosen by the school as specified in the above section 2 shall be taught in at least four classes (hours) a week.
c) In addition to the provisions laid out in the above sub-sections a)–b) in the education of the Roma minority and in the education aimed to foster individual talent, at least three classes a week have to be provided for differentiated skills development training that may be organised in the framework of day-time home or study schoolroom programmes as well. ”
Therefore, the programme implemented for the Roma minority has to comprise the following two elements: on the one hand, cultural education, on the other hand - in contrast to minorities’ education - the reduction of any disadvantage relating to the socio-cultural background and talent fostering.
Schools have to prepare the above two key elements of local syllabuses for themselves, based on the guideline. A programme elaborated by an education institution is approved by the authority in charge of maintaining the given education institution. Consent of the local minority self-government also has to be acquired.
An application for a supplementary normative subsidy may be submitted for the implementation of programmes so elaborated and approved. According to Annex 3 to Act No. CXXV of 1999 on the year 2000 budget of the Republic of Hungary HUF 27,500 supplementary state funding contribution is payable for each child involved in such a programme. (This amount is allocated to the local government exercising the rights of the organisation in charge of maintaining the education institution, and it is to be used - in principle, at least - for the provision of the personal and material requisites of the education of the members of the minority concerned.)
Based on findings of a number of cases the following problems have been identified with respect to the operation of the education of minorities:
• The education of children of the Roma minority has been found to be no more than education aimed to help Roma students to catch up with the average. I.e. some schools do not even provide education concerning the specific features of the Roma minority as a distinct community, they provide only additional assistance in respect of the learning of specific subjects. In some cases fragments of the guideline are implemented within some of the subjects, but not at all in accordance with the provisions of the guideline. In other cases the pedagogy programme is only a mechanical copy of the guideline and neither the timetable, nor the syllabus contains any material element pertaining to the description of the minority as a separate entity.
• In some of the cases, along with the organisation of the education of children of the Roma minority, other subjects simply ‘disappeared’ from the timetable of Roma children: such subjects included - typically - foreign language teaching and information technology.
• In comparison with the staff employed in non-minority education there is a larger number of teachers in the education of children of the Roma minority without qualifications or with other than the appropriate qualifications (science subjects are often taught by teachers without the appropriate specific qualifications.).
• ‘Roma classes’ are taught in many cases in the most poorly equipped schoolrooms or in disadvantageous - e.g. less sunny - sections of a school.
• The organisation of Roma minority education - as in the case of other minorities, in accordance with the rule laid out in Article 43 (3) of the Nektv. - is to be initiated by parents. By submitting such request a parent - legal representative - makes a statement concerning the ethnic origin of his or her child. Pursuant to Article 2(2) of Act No. LXIII of 1992 on the protection of personal data and the publicity of information of public interest (hereinafter: Avtv.) data concerning national or ethnic origins qualify as special data. According to Article 3(2) special data may be managed by someone or by an organisation if the person concerned has agreed to the management of such data or if the management of such data is prescribed by law. Pursuant to Article 6(1) and (2) the person concerned - or his/her legal representative - has to be informed of the fact that the provision of such data is voluntary, and of the objective of such data collection as well as of the mode of data management. Statutes concerning public education do not specify the regime of the management of data on students belonging to ethnic minorities, therefore, written consent of those concerned, in this case parents or legal representatives, practically constituting an initiative, is a mandatory requisite. For this statement issued by parents specifies at the same time the fact that the child concerned originates from an ethnic minority and it authorises the education institution to carry out the tasks relating to the management of such data.
Education of the Roma minority is often organised without request by parents. In one case parents made no statements at all with respect to this issue, i.e. the programme was organised without their knowledge.
In another case parents were to sign a form typed in advance, when enrolling children in the local school. The parents were not in the position to make their own decision. On the one hand, it is not enough to simply read a ‘form’ that has been prepared in advance, if they have not been informed already of what such type of education actually means. In the specific case now referred to, however, the ‘form’ did not even specify what the individual signing it would ask for, it only contained a reference to the paragraph regulating the education of the Roma minority, without actually specifying the act and the paragraph. In formal terms, this practice may perhaps be legitimate, however, it may violate a number of constitutional rights of parents, including, first of all, the right of a parent to choose the type of education for his or her child and it also violates the freedom of assuming and declaring one’s identity as well.
Where a school obtains a declaration issued by a parent, problems may arise from the lack of proper, detailed information of the parents of what education of the Roma minority will cover, including, for instance, that children will be organised in a separate class.
• Pursuant to Article 102 (10) of the act on public education if an education institution performs tasks of education of minorities consent by the minority self-government has to be obtained for the approval of the pedagogy programme. In some of the cases covered by the complaints this condition was not met either upon the organisation of the education of the Roma minority.
It should be noted that in many cases local governments - in co-operation with local schools - organise the education of the Roma minority only in order to acquire the entitlement to the supplementary normative grant. In some cases the education of the Roma minority is organised only in order to segregate students of the Roma minority in an apparently legitimate form.
For it is possible to draw well-grounded conclusions from the frequent failure to meet content requirements of minority education concerning that the given form of education of the local minority has not been organised in order to equalise inequalities of opportunities, rather, it serves financial interests of the local government or the education institution. Classes or groups established with the aim of minority education may serve to treat Roma students as ‘different’, separated from the rest of the children.
Education of Roma children aiming to enable them to catch up with their peers was subject to many debates over several years. Experts of the area of the education of minorities criticised the title of this form of education, arguing that it designates the whole of the Roma minority as a group in need of catching up. Whilst leaving the regulation unchanged, the No. 13/1999. (III. 8.) OM Decree of the Ministry of Education re-named this form of education. In our view, however, the contents of this type of education should also be transformed, based on the following considerations.
Although the first point of the text still mentions ‘potential’ disadvantages of Roma students, two of the tasks (a) development of children in subjects taught at school, c) socialisation, communication development) comprised in the list of duties in the second point detailing the tasks to be carried out by the education of the Roma minority, strengthen a negative stereotype. The regulation suggests that Roma children - on the whole - are in need of development, i.e. they are not as well developed as other children. That is, even after dropping the term ‘catching up’, the regulation on the education of the Roma minority implies that the Roma identity is accompanied by lower standards of development.
The impact of this ‘message’ on children should also be noted. Education enabling children to ‘catch up’ may be useful and necessary on an individual basis, however, the prescription of such special education for an entire ethnic group - even if it is to be provided under the framework of an optional form of education - is rather demeaning. If children of Roma identity are approached as members of a group trying to tackle disadvantages in development, it will result in actual disadvantages among children entering the education system without such disadvantages. The socio-psychological phenomenon which is referred to as ‘self-fulfilling prophesy’ is particularly important in an education institution. If a child is ‘put in a box’ as a hopeless case he or she will not be able to achieve even what he or she otherwise could, without any stimulus to meet expectations. If this is based on the identity of the child, it will even deteriorate his/her identity awareness, not ‘only’ his/her performance at school.
Based on the above arguments we have turned to the Minister of Education with the proposal to modify the regulation on the contents of the education of the Roma minority, deleting from the programme of the education of the Roma minority the areas of education that are aimed to help Roma children to ‘catch up’, leaving only the elements of education focusing on features the Roma minority as an ethnic group.
The Minister of Education has informed us in his answer that an adjustment to the regulation may be considered based on the technical/professional experience accumulated so far. He also noted that in proof of the inspections and surveys carried out by or for the ombudsman there is an increasing number of cases indicating that the programmes aimed to improve the chances of disadvantaged Roma children in education should be separated from the education of the Roma minority as a whole. Accordingly, the Ministry of Education will set up a working group in year 2001 to carry out a comprehensive analysis of the education of Roma children. Depending on the findings of the analyses the ministry intends to continue the improvement of the framework of the education of the Roma minority and at the same time it will elaborate the conditions required for the implementation of programmes aimed to improve the chances of disadvantaged Roma children for succeeding in their studies.
IV.
The situation in respect of the rights
of minorities relating to language use
The promotion of the enforcement and exercising of the rights of minorities in respect of education is considered as a particularly important task for the ombudsman, because from the aspect of the preservation of the awareness of identity of minorities it is particularly important that the system of education should give proper assistance to minorities in preserving and learning their own mother tongues.
This is why we do not agree with any restriction of the possibilities of taking language proficiency examinations in the languages of minorities in the course of the planned reform of the system of language proficiency examinations - which we also consider as necessary, from other perspectives.
The question of official language proficiency examinations granting certificates of foreign language proficiency was discussed in the course of our negotiations with the Minister of Education in June 2000 in the course of which we drew the attention of the minister to some problems that need to be resolved.
One of the most important problems discussed in those negotiations was that the above mentioned government decree concerning the regime of official foreign language proficiency examinations and certificates of foreign language proficiency contains no specific rules on the languages of national and ethnic minorities.
For the above mentioned decree provides for easier conditions only in the case of the so called ‘minor languages’18 - including lower accreditation fees - and it does not specify preferential terms concerning the provision of opportunities for taking examinations in the languages of minorities as listed in the act on minorities.
In close co-operation with the Ministry of Education we launched an ex officio survey and assessment in the fourth quarter of year 2000, aimed to promote the modernisation of the higher education institution along with the elimination of any inconsistencies within the effective legislative environment, by our proposals for the legislator based on factual information. A review of the new regime of official language proficiency examinations will be part of this effort.
Our proposals concerning the use of names of minorities and the registration of members of national and ethnic minorities in the birth registry
One of the functions of a family name and the given name is to distinguish people from one another. After the entry in the birth registry a person is entitled - and at the same time obliged - to use this name, as this is necessary for the establishment of his or her personal identity and at the same time this is one of the most important expressions of his or her belonging to a nation or minority. This is particularly so in the case of names used by minorities, for these may be forms of the assumption and expression of the awareness of one’s identity as a member of the national or ethnic minority concerned. Bearing a name that is typical of a given minority community may be clearly indicative of one’s ancestors belonging to the given minority, or, depending on the decision made by the individual, it may be a means of expressing identity towards the rest of the members of the society. The preservation and passing down of the historically evolved given names may be one of the most important forces of cohesion of a minority community. This is why it is particularly important that Article 12 (1) of the Nektv. secures the right for individuals belonging to national and ethnic minorities to freely choose their own and their children’s names.
Our last report already referred to the problem of the enforcement and application of the law originating from the deficient legal regulation of the registration - in the birth registry - of individuals belonging to ethnic minorities. The reason for this is that although according to the relevant legal provisions parents may choose and request the registration of names contained in the official list of Hungarian Christian names supplemented with given (Christian) names used by Hungarian national and ethnic minorities (Magyar Utónévköny), however, this book has not yet been completed and published.
Our proceeding was triggered by a complaint of an individual belonging to the Serb minority that the registrar would not register the name Jelena - which is not included in the Hungarian book of given names - only if either parent of the baby gave a written statement of belonging to the Serb minority.
This case was closed by the addition of the name Jelena to the list of (Hungarian) Christian names that may be freely registered, based on the technical opinion issued by the linguistics institute of the Hungarian Academy of Sciences. Thus the complainant could request the registration of the given name without identity certification.
The complaint was thus remedied, however, on the basis of our review of the statutes we considered that this regime of the registration of given names of minorities and the related practice of the application of the law raise concerns from a variety of aspects. In our view the proper exercising of the rights of minorities necessitates a thorough reform of the entirety of the effective regulations on (birth) registration therefore our proposals aimed to introduce a general amendment to those regulations.
The right of choosing and using a name is not specified in the Constitution as a separate fundamental right. Instead, it is a right of an individual that is related to human dignity and the right to good reputation. This relationship, however, is not close enough for the establishment of the right to bearing a name as a separate fundamental right. Based on such an interpretation, legislative restrictions may be established - primarily in the interests of the individual, others and the society as a whole - concerning the choice, bearing and registration of names.
By pursuing this interpretation of the law, the conclusion may be drawn that the registration of a name may be refused based on arguments concerning the protection of the interests of the individual and society as a whole, if it violates personality rights or if it is demeaning or offensive in meaning. Our position is that the parent’s decision should be respected in all other cases and the name chosen is to be registered.
The book of Hungarian Christian names should, therefore, be considered only as a special catalogue helping parents in choosing a name, however, we see no constitutional reason for the refusal by the registrar to enter a given name in the birth registry only because it i not included in the book. Although it is possible to add new names to the list contained in the book based on the opinion expressed by the linguistics institute of the Hungarian Academy of Sciences but this may be a lengthy procedure. (In one case it took several years for the given name chosen by the parent to be registered.)
Instead of providing additional rights to individuals belonging to national and ethnic minorities, in our view, the general rules on name selection should be altered to make it possible for Hungarian citizens to freely choose and use names. This should also apply to names of national and ethnic minorities or names that sound foreign to the Hungarian ear. This right could be restricted by the state only exceptionally, in the interest of the child, for instance where it would seem that the registration of the name chosen by the parents would violate the personality rights or dignity of the child. It is not considered, by the way, that many people would give foreign names or names of national and ethnic minorities to their children without actually being related to the given minority community. In this respect, however, it should also be pointed out, that we would not see such a practice as one to be criticised even though the liberalisation of the rules on bearing names could, in principle, result in a growth of the number of names temporarily ‘in vogue’ from time to time.
If freedom of name choice is not introduced for all Hungarian citizens in general, by an appropriate amendment to the regulations on the registration of names, the practice of registration of names of national and ethnic minorities as applied so far, should be reviewed.
In our view in the case of names of national and ethnic minorities the linguistics institute of the Hungarian Academy of Sciences cannot make adequate decisions, therefore, there is no justification for its involvement as a ‘special authority’. In order to prevent abuse or the giving of names to children that would violate their rights, the lists of given names of the mother countries of minorities should be adopted, or where no such compilations exist, the national minority self-governments should express their positions on whether a given name should or should not be considered as a regular name of the national or ethnic minority concerned.
2.
Use of minority languages at public appearances
Having reviewed the experience accumulated over years of inspections and reviews performed by the ombudsman in charge of the protection of rights of minorities it should be noted that the office of the ombudsman received a relatively small number of complaints pertaining specifically to the use of minority languages - apart from problems in the registration of names of national and ethnic minorities and, in general, those relating to the teaching of minority languages. There was one case in year 2000, however, which was so unusual and singular - and which offered such a lesson to be drawn - that it definitely has to be related here.
The former chairman of a German minority self-government operating in one of the districts of Budapest - who is still a member of the minority self-government council - submitted a number of complaints and applications to the ombudsman in charge of the protection of rights of minorities with separate contents, complaining about different issues in each case. From the aspect of the case it must be mentioned that the relationship between the complainant and his fellow councillors deteriorated and eventually he was stripped of his position as chairman, by the council of the minority self-government. In one of his complaints the councillor in question claimed that his fellow councillors would not use the German language at the meetings of the minority self-government, and when he definitely insisted on making his addresses in German, they passed a resolution that ‘the official language to be used at the meetings of the council shall be Hungarian’. The complainant considered the resolution passed by the council of the minority self-government as violating the law in several respects and he submitted a separate application to the Budapest Public Administration Office to issue an observation on the non-compliant nature of the resolution. The head of the public administration office refused to do so, remarking that no statute had been violated and since the majority of the members of the council do not speak German, the use of the Hungarian language at the meetings was considered as ‘expedient’.
In the course of the inspection carried out with respect to the above outlined case the position expressed by the head of the public administration office was found to be problematic from several perspectives.
For instance, Article 68(2) of the Constitution stipulates that ‘the Republic of Hungary protects national and ethnic minorities. It ensures their collective participation in public life, the cultivation of their cultures and use of their mother tongues ... ’.
The individual and collective rights granted to national and ethnic minorities recognised by the Constitution as ‘factors constituting the state’ and those provided for them by the act on minorities (Nektv.) are aimed primarily to prevent assimilation and to create and expand education and cultural autonomy. Within the range of these objectives the various special language-related rights are attached particular importance, the exercising of which - or the possibility of the exercising of which - is the most visible objective criterion of belonging to a given national or ethnic minority.
In concert with this constitutional rule the Nektv declares under the heading of ‘Language Use’ that ‘A Member of Parliament belonging to a national or ethnic minority may use his or her mother tongue in Parliament’. The Nektv. also declares that a representative of a national or ethnic minority in the council of a local government is also entitled to use his or her mother tongue.
Although the Nektv - which recognises the right of a member of a local government who declares himself or herself to belong to a national or ethnic minority to use his or her mother tongue - does not specifically stipulate that members of minority self-governments also have this same right at the meetings of the councils of minority self-governments, however, the prohibition or prevention of the use of the mother tongue at the meetings of bodies specifically established in order to promote and exercise rights of minorities is definitely to be regarded as an offence violating the provisions of the Constitution and the Nektv.
It is a fact beyond doubt that as a result of centuries of assimilation (not at all a ‘spontaneous process in many cases) people belonging to various national and ethnic minorities no longer speak their original mother tongues. It is also true that the use of the mother tongue would make it difficult for them to communicate with authorities, local governments and other organisations.
Furthermore, difficulties arise for public administration offices in some cases from the translation or the reviewing of resolutions contained in minutes drawn up at meetings of councils of minority self-governments in foreign languages. Nevertheless, it is a fact that no public administration office has developed practices in Hungary that would prevent minority self-governments from holding their meetings and from conducting their discussions in their own mother tongues, and from preparing and submitting their documents (resolutions) in their own languages.
In respect of this issue it was also considered necessary to point out that Act No. XL of 1999 ratified the provisions comprised in the European Charter of Regional or Minority Languages adopted on 5 November 1992 in Strasbourg, whereby the Republic of Hungary definitely committed itself to the protection of the historical, regional or minority languages of Europe and to ensuring the possibility to use such languages in private life and at public fora. Pursuant to Article 7 1/d of the Charter the ‘enabling and/or encouraging of the use of minority languages in the private life and at public fora, in oral or written form’ is specified as an objective supported by the contracting states.
Article 10 of the Charter - on the duties of public administration authorities and public service organs - makes it possible, and, indeed, in some cases obligatory, to use the languages of minorities in oral and written form. Thus, in particular, Article 10 2/f ensures the use of languages other than the ‘official language of the state’ - that are covered by the scope of the Charter - even in the ‘debates of councils of local bodies’.
The Parliamentary Commissioner had to come to the conclusion in respect of the case under review that the head of the Budapest Public Administration Office, by failing to make an observation concerning the violation of the law by the resolution passed by the council of the minority self-government - breaking the relevant provisions of the law in several points - did breach its obligation specified in Article 99 of the act on local governments.
Based on our initiative – concerning the taking of actions to remedy the situation - the head of the Budapest Public Administration Office declared that he issued the observation we called for, as a result of which the minority self-government concerned abolished its unlawful resolution concerning the use of the language at the meetings of the council.
V.
Cases of violations of the prohibition
of discrimination regulated in Article 70/A of the Constitution and in Article
3(5) of the act on minorities
1.
Cases of direct discrimination that should be regarded as typical
The category of direct discrimination is comprised of cases of negative discrimination where on the one hand the law is clearly violated - causing actual disadvantage, withholding of benefits to which one is lawfully entitled - and the reason for such violation is clearly related to one’s religion or ones belonging to a national or ethnic minority, one’s political convictions, specific social status etc.
Open discrimination imposes an immense danger and adverse (irritating) effect on society for in such cases certain members or groups of society act against others - based on actual or assumed characteristics of the latter or on categorisation of the latter group on the basis of criteria that do not actually exist - in a hostile, discriminative way, perhaps even causing actual damage to them.
Although the provision comprised in Article 70/A (1) of the Constitution - in accordance with the key documents of the international law - prohibits all forms of discrimination, however, in this report we shall focus on discrimination on account of people’s belonging to national and ethnic minorities.
The country reports prepared by the Council of Europe, the European Union and the annual report of the Human Rights Watch ‘on the human rights situation of the world’ disclosed on 16 January 2001 also dealt with the problems of ethnic discrimination. The section devoted in this report to Hungary stated - with reference to the human rights related country report of the US State Department - that ‘in Hungary members of the Roma minority and foreigners are victims of police atrocities’.
A generalising statement of this type - without any support by concrete examples - may give the impression to a citizen living in any country of Europe or overseas who does not have in-depth knowledge of the conditions prevailing in Hungary, that xenophobia is characteristic of the Hungarian nation as a whole. One good example for this has been a notice disclosed recently in a paper by the Dutch section of the organisation Amnesty International (AI) - based on unconfirmed information - claiming that ‘Roma children are brutalised and tortured by police’ in Hungary. Since the publication of this notice in January 2001 the AI has admitted its mistake and has apologised to the Republic of Hungary.
Both in the period following the publication of the country reports prepared by foreign organisations and after the - actual or alleged - atrocities in Hungary we received numerous requests for information on the actual situation in Hungary in respect of the alleged racist phenomena and the reality of news on such activities.
The parliamentary commissioner for the rights of minorities has of course received complaints and submissions on violations of the law qualifying as criminal offences, which may, in general, be categorised as ‘phenomena of racism’. Based on such complaints and reports, however, it is not at all possible to draw a conclusion that any minority group is suffering from institutionalised persecution or harassment on the part of any authority. Of course, this does not mean that there are no individual cases or that officials acting on behalf of the state or individuals performing public duties do not behave in a way that does qualify as direct discrimination.
The Obtv. (act on the parliamentary commissioner) specifies, in clear-cut rules, the duties of the parliamentary commissioner in case of learning that a criminal offences has been committed or upon learning of circumstances giving rise to suspicion of such activities in the course of his investigations. Based on Article 24 of the Obtv. the parliamentary commissioner is obliged to initiate criminal proceedings to be commenced by the competent authority (criminal investigation authority) which qualifies as a general obligation to make criminal charges in such cases. Although the Obtv does not regulate this in detail, however, the ombudsman is not obliged to make criminal charges in the case of offences to be sued for by private individuals. Upon learning of such a case we usually draw the attention of the individual entitled to make the criminal charge or to sue for the case that he or she has 30 days after the offence or after learning of the offence to initiate the criminal proceedings.
According to the Obtv. it is a fundamental obligation of the parliamentary commissioner to investigate or to arrange for the investigation of irregularities relating to constitutional rights, and to initiate general or individual actions to remedy such irregularities.
Grievance caused with respect to constitutional rights or the imminent threat of such grievance qualifies as constitutional irregularity - according to the reasons attached to the act. The concept of grievance is, therefore, to be interpreted in a broad sense, i.e. not only actual violations of specific provisions of laws are to be investigated. Investigations have to be extended to the question of whether the effective legal regulations are satisfactory or not.
Exploring and identifying any form of ethnic discrimination is the most important task of the parliamentary commissioner for the rights of minorities, along with providing for the remedying of such, as far as possible.
As has been mentioned, the Hungarian Constitution imposes a general prohibition on all forms of negative discrimination, indeed, it calls stipulates that it is ‘strictly prohibited by law’.
Assessing the adequacy of legal regulation the above mentioned constitutional rule is applied as something of a benchmark, for in the case of the actions taken in the wake of our recommendations and the criminal charges made by the office we necessarily check the extent to which such actions have accomplished their goals, to what extent they have provided legal remedy for the aggrieved party and of course we also check whether they have any preventive effect.
Cases of direct discrimination committed by officials in the course of official proceedings, usually qualify as separate criminal offences. Mention should be made in this area of the offence of ‘abuse in official proceedings’ violating Article 226 of Act No. IV of 1978 on the Criminal Code (hereinafter Tbk.) as well as the criminal offence of interrogation under coercion covered by Article 227 of the same act, which is often referred to as ‘police atrocity or brutality’.
We have information on cases where the individual under police action or penal proceedings assumed that the violent behaviour of the members of the authority was related to his or her origin or that the action was taken specifically because of his or her belonging to an ethnic minority. In such cases, further to our meeting our statutory obligation - initiating of the conducting of criminal proceedings by submitting our application to the county (Budapest) supreme prosecutor - we regularly draw attention of any racial motives of the event that may have an influence on the qualification of the behaviour or the penalty to be applied.
In view of the motive of the action, the criminal offence of violation against a member of a national, ethnic, racial or religious group as specified by Article 174/B of the Criminal Code may be established instead of a criminal offence committed by an official in the course of official proceedings. This is a punishable fact based specifically on racial, ethnic or religious etc. motives which qualifies as a very serious offence. (It should be noted that since the amendment on 15 June 1996 of the Btk. only one case has taken place where the court passed a final and enforceable verdict stating that the criminal offence had been committed. We have no information on any criminal investigation that would have been ordered to be carried out against officials of authorities on account of such activities.)
In year 2000 a total of 14 complaints were submitted to our office complaining about police actions. In 9 cases out of the 14 the suspicion of physical abuse and harassment by the police was raised. In respect of such cases - without questioning whether they had actually taken place - one of the ‘natural defence reflex’ of persons under official proceedings should not be disregarded.
Suspects and defendants often revoke their confessions given before the police by referring to the application of coercion or under threat by the police. This would probably be confirmed by the various organs, primarily representatives of the prosecutor’s office and the court.
The criminal code should be restricted to the protection of the basic values of the social order, its task is, therefore, to protect such values by applying its specific means and instruments. In general, criminal law is interpreted in its narrow sense, covering the substantive criminal law. From the aspect of this report, however, it is important that besides this narrower concept the contents of the term should be assessed in view of its broader sense. In this approach the criminal law means primarily the substantive criminal law which is an aggregate of the statues of law that determine what activities qualify as criminal offences, along with the penalties and actions to be applied as legal consequences under the criminal law. Secondly, it means the law on criminal proceedings, constituted of statutes of law specifying the organs and the proceedings for the judgement of criminal offences. Finally, it also includes the law on the enforcement of the penalties, including the rules of the regime on the application and implementation of the penalties and actions imposed in the course of the criminal proceedings.
Our experience accumulated during the recent more than five year period proves that in the course of his activities the parliamentary commissioner ‘met’ criminal offences or circumstances indicative of such, much more frequently than had been assumed at the time of the drafting of the legislation in view of the information then available on this area.
Therefore, it is justified to describe some examples to illustrate the ‘detours’ of the parliamentary commissioner in the territory of the criminal law that do not qualify as regular but that are, indeed, regarded as necessary in view of the contents of the complaints.
2.
Some examples falling under the scope of the criminal law
A television interview described a case where a resident of Budapest purchased a building site in a village. Thereafter, the individual submitted an application to the mayor’s office for a building permit. The application was rejected by the authority with reference to considerations pertaining to the protection of historical monuments, but it was clear from the report hat the actual reason for the refusal was that the applicant belonged to the Roma minority. The authorities definitely intended to prevent the Roma family from moving to the village. Our inspection was commenced based on the complaint submitted by the applicant.
According to the position expressed by the ombudsman the officials breached - abused - their official powers and obligations in order to cause unlawful disadvantage. The tape of the recording was acquired by the office.
The data learned from the report were indicative of grounded suspicion of abuse of official power violating Article 225 of the Btk., therefore, the notice on the case and the tape was forwarded to the county chief prosecutor, asking for action to be taken, in accordance with Article 24 of the Obtv.
The deputy of the chief prosecutor informed us that the competent municipal prosecutor’s office ordered supplementation of the criminal charge and promised to inform us of the action taken with respect to the case. (Since then the municipal prosecutor’s office has ordered criminal investigation on account of grounded suspicion of abuse of official power, the police are conducting the investigation. The ombudsman is monitoring the development of the case.)
Based on the above example - and other cases - it should be stated that our relationship with the prosecutor’s office is usually constructive, the role of the ombudsman is not limited to the automatic submission of criminal charges. The ombudsman gives a detailed account of his position in the course of the submission of complaints against resolutions or verdicts where necessary.
Over recent years prosecutors’ offices have recognised that the notices submitted by the parliamentary commissioner should not at all be considered as ‘hair-splitting’ slowing down, ‘negatively influencing’ the progress of criminal proceedings. Instead the interests of prosecutors’ offices and those of the parliamentary commissioner are fundamentally similar. In general, it should be noted that the prosecutor’s office takes our comments positively, which the authority issuing resolutions or judging complaints cannot disregard, for the arguments comprised in our comments may contribute to the passing of proper and just verdicts.
The following example is presented here to illustrate the above findings primarily in the area of the criminal substantive law.
A legal aid service office turned to the parliamentary commissioner for the rights of minorities because the teacher of the local primary school used (in their view) abusive terms in addressing a child (pupil) of the Roma minority in class. This occurred, allegedly, on a number of occasions.
The letter written by the lawyer proceeding on behalf of the legal aid service office and the attachments to the letter were submitted to the county chief prosecutor. The ombudsman declared that pursuant to the provisions comprised in Article 24 of the Obtv. he deemed that criminal proceedings should be considered for the behaviour of the teacher was indicative of grounded suspicion of committing criminal offence. He argued that special attention should be paid to the endangering of a minor, violating Article 195 (1) of the Criminal Code, for the person performing the duty of education of the under-age individual seriously breached her obligation by making the statements in the presence of a whole class at school as quoted in the attachment, not only abusing the minority by such statements, but also endangering the moral development of all of the children present.
The county chief prosecutor responded to the letter and stated that in order to identify the facts of the case the county chief prosecutor’s office had ordered a supplementation to the criminal charge which had been conducted by the competent investigating organisation. According to the data collected in the course of the supplementation of the criminal charge the county chief prosecutor’s office denied the criminal investigation with respect to the criminal offence of endangering a minor. Since according to the available data the grounded suspicion of the offence of insult could be established, the documents were forwarded to the competent court for the purpose of conducting an action based on charges made by a private person. The chief prosecutor attached a copy of the verdict brought on the case refusing the investigation.
From the reasons attached to the verdict it is established that in the course of the supplementation of the criminal charge the investigating authority heard the children concerned and established that the teacher had used insulting expressions relating to their Roma origins, motivated primarily by the unruly behaviour of the children in class.
According to the position expressed by the prosecutor the criminal offence of endangering a minor may be committed by a person in charge of the education, supervision or nursing of a child, seriously breaching his or her duty arising from this obligation, but in the given specific case no behaviour indicative of such serious breach of obligation could be identified.
The other material element of the a criminal offence - that is the threatening of the moral development of the children - could not be established either, for the children did not display immoral or antisocial behaviour afterwards, that could have been derived from the behaviour of the teacher against whom the charges were laid.
It was also established that the majority of classes were comprised of children belonging to the Roma minority and the special class had been formed exclusively of Roma children. Thus the threatening of the moral development of non-Roma children could not be established either, partly on account of the reasons outlined above. Consequently, they reached the conclusion that only a private action could be conduced with respect to the given case, on account of a grounded suspicion of moral insults.
The parliamentary commissioner considered the above resolution and its reasons unacceptable. The parliamentary commissioner informed the senior prosecutor of the chief county prosecutor’s office of his position, asking for the invalidation of the resolution or for the forwarding of his position to the Supreme Public Prosecutor’s Office.
In his position statement addressed to the competent department head of the Supreme Public Prosecutor’s Office the ombudsman declared that the contested resolution was not acceptable and its reasons were not convincing. The resolution only declares that it was not possible to establish behaviour on the part of the teacher in the case complained about that would have been indicative of grave violation of her duties, but it gave no reasons for why the breach of the obligation of the teacher is not considered as serious.
To the contrary, the ombudsman argued that on the one hand the Constitution provides human and citizens’ rights for all individuals staying in the territory of the Republic of Hungary without discrimination by race, colour, gender etc. The Constitution also stipulates that the law applies severe punishment to any negative discrimination against people on the ground of race, colour, gender etc, on the other hand, the law on public education specifies the fundamental rights and obligations of children (students) and of teachers. In view of the above the only conclusion to be drawn is that if a teacher discriminates between children depending on their origin, if he or she violates their personality rights, then the teacher violates his or her duty at least as gravely - if not even more gravely - than by applying corporal punishment (in which case the grave violation of duty would probably not have been questioned). The behaviour of the teacher against which the complaint had been submitted does constitute grave violation of duty - according to the opinion of the ombudsman - for it is contrary to important rights declared in the Constitution and listed on a itemised basis in the act on public education.
The ombudsman also pointed out that according to the resolution refusing the criminal investigation the behaviour of the teacher is suitable for the establishment of moral insult, and this offence committed in class seems to be sufficient alone - even without any other factor - to definitely establish the grave violation of the teacher’s duty.
The argument that the other element of the criminal offence - that the moral development of the minors in question was threatened - was missing, according to the resolution because the children did not display immoral or antisocial behaviour later on, is not valid either. This position is fundamentally wrong for such result is not necessary for the establishment that such criminal offence has been committed, and by the serious breach of duty on the part of the teacher and by the resulting threat to the moral development of the minors in question, the criminal offence was accomplished. According to the ombudsman the conclusion drawn by the prosecutor that the threatening of moral development cannot be established in the case of the non-Roma children either was also rather strange, for this part of the reasons cannot be interpreted in any other way than that the Roma and the ‘Hungarian’ students - as the ‘audience’ of the criminal offence - should be discriminated between on account of their very origins.
Consequently, the ombudsman maintained his opinion that the grounded suspicion of the criminal offence could be established and he asked for the ordering of a criminal investigation.
The Supreme Public Prosecutor’s Office took the arguments of the ombudsman as a complaint against the resolution and called on the chief prosecutor’s office to initiate a criminal investigation, but not on the basis of the ombudsman’s arguments, instead it did so having accepted and based on the complaint of the lawyer proceeding in representation of the legal aid service office. In its reasons the Supreme Public Prosecutor’s Office established that the data contained in the charge and in the supplementation of the charge were suitable for the establishment of the grounded suspicion of the threatening of a minor, therefore, the criminal investigation has to be ordered concerning the case. After the completion of the criminal investigation, having heard the witnesses and the suspect and based on the opinion expressed by the psychologist expert, it will be possible to make a well-grounded verdict on the merits of the case.
Upon the completion of the investigation the county chief prosecutor’s office came again to the conclusion that the behaviour against which the charge had be made did not qualify as criminal offence, therefore, the investigation was terminated. According to the reasons the teacher used gravely insulting terms to Roma children who refused to behave in class. But, according to the psychologist’s opinion, the teacher’s behaviour did not threaten the intellectual and moral development of children.
The investigation also established that the teacher applied corporal punishment to a number of children in class, hitting them with books, a pointing stick etc. Consequently, another psychologist examination was commissioned. The repeated expert opinion confirmed the earlier statement that the teacher had not threatened the bodily, moral or intellectual development of the children.
In it’s the reasons supplied, the chief prosecutor’s office admitted that the teacher had violated the behaviour norms imposed on teachers, however, in her case this should be considered as a circumstance necessitating disciplinary actions and not a grave violation of duty to be regarded as the basis of a criminal offence. According to the position expressed by the prosecutor’s office no danger emerged which is confirmed by two psychologist expert opinions. On account of grounded suspicion of moral insult a private action should be instituted in the case, therefore, the documents are transferred to the competent municipal court.
The new resolution was not acceptable for the ombudsman either, on account of the above described statements that the ombudsman considered as not supported by proper arguments. The ombudsman maintained his position that the behaviour of the teacher in the concrete case met the criteria of grave violation of duty and that the behaviour of the teacher had endangered the moral and intellectual development of the children, therefore the criminal offence had been committed. In his letter the ombudsman also noted that in the concrete case the establishment of the existence or lack of the danger cannot be a mere expert task, it is a matter of fact, that is a question falling under the scope of legal consideration by the judge, a question to be decided on the basis of objective grounds. It should also be noted in general, that the expert opinion is only one possible means of evidence, but it particularly applies to the case under review where the facts and the expert opinions are not in concert.
The Supreme Prosecutor’s Office maintained the effect of the contested resolution treating the position of the ombudsman as a complaint, but it called on the chief prosecutor’s office to take action concerning the delegation of a competent prosecutor to represent the charge in the private action to be conducted against the teacher - on account of the public interest. I.e. the Supreme Prosecutor’s Office did not accept the arguments of the ombudsman but considered the case to be of a gravity that it assigned the task of representation of the charge to the prosecutor, on account of the public interest, instead of the aggrieved party.
3.
Discrimination complained about in the course of criminal proceedings
Suspicion of discrimination may arise in the other constituent area of the penal code, in the application of the criminal procedure law. For in many cases the individuals under criminal proceedings complain about why they have been brought under the scope of the activities of the investigating authorities and why did the police have to search their homes, and they feel that the police are more suspicious with respect to them than with respect to other potential criminals.
Without going into detail, in general, it should be noted that in the case of the investigation of cases where the identity of the perpetrator is not known, the police follow an established regime of procedures. They have to search the location of the crime, check on the group of potential perpetrators, in the case of which they take into account who had committed similar criminal offences applying the same methods before. In the case of the application of prompt actions of investigation - e.g. searches of homes of suspects - prejudice may influence the operations, however, discrimination can almost never be proven in such cases for the investigating authorities make their decisions relying on data originating from a wide variety of sources, including for anonymous reports.
4.
Negative discrimination in the course of the penal proceedings
After our description of issues pertaining to the penal code and the criminal procedure law let us outline some of our experience relating to the area of the law on penal proceedings.23 In the case of citizens serving prison sentences or under forced medical treatment the situation is even more complex than one might think.
The state may - and is obliged to - restrict and regulate the freedoms of people, however, this is to be done only to the extent that is demanded by the public good, the interests of the society. Citizens’ rights may be restricted for the purpose of the implementation of sentences also only to the extent that is indispensable and that is enabled by the provisions of the law. Basic citizens’ rights may not be restricted, and the obligations also have to be applied, if they are not contrary to the purposes of penalty. In the course of the serving of a sentence the rights and obligations of all citizens and the special rights and obligations originating from the law on serving sentences exist in parallel, constituting a special legal network the rules of which are difficult to interpret and understand.
The ombudsman carries out his investigations from the aspect of the application and enforcement of citizens’ rights and the rights of ethnic and other minorities, not from a general perspective and he does not carry out preventive comprehensive investigations. The majority of complaints pertaining to the area of the law on penal procedures are aimed at the circumstances of detention, the difficulties or impossibility of keeping in touch with the family of the convict, the tight rules, the distance from the place of residence or the lack of working opportunities etc. The role of the ombudsman in charge of the protection of rights of minorities in respect to these complaints is not of one of legality supervision. Instead, the ombudsman provides supplementary and substitute legal protection as far as possible and he also plays a role of ‘lobbying’ on behalf of complainants. (The right to submit complaints to the parliamentary commissioner, the so called ‘supplementary entitlement’ in addition to the prosecutor’s legality supervision and the possibility of turning to court, is part of the general guarantee system ensuring the enforcement and exercising of rights.)
Mention should be made here of the rights of convicts and of any violations of those rights. From among such rights and entitlements, however, we shall mention only those with respect to which complaints have been submitted to the parliamentary commissioner.
First of all, a brief account is given of a case that is different from the examples relating to initiating actions on account of criminal proceedings as specified in Article 24 of the Obtv. as described above, only in that the aggrieved party is a convict serving his detention sentence, in contrast to the above mentioned ones.
The complainant complained about having been beaten by guards in the detention facility.
In response to our initiative the competent military chief prosecutor informed us that criminal proceedings had been launched against the members of the guard on account of ill-treatment committed during an official procedure. The ombudsman would be informed of the outcome of the investigation.
The fundamental rights of convicts are specified by Law Decree No. 11 of 1979 on the enforcement of punishment and on the implementation of actions (Enforcement Code) amended by Act No. XXXII of 1993. Many of the complaints relate to the area covered by Article 24 of the Code.
Accordingly to Article 24 it is possible for the convict to serve his or her sentence in the detention facility that is closest to his or her place of residence. Th following is a list of some examples for requests concerning this:
The convict complained against having been transported from the county prison to Budapest, as a result of which his relatives cannot visit him - because of the large distance. He also complained that he was not granted a temporary leave despite the fact that he was subject to lighter enforcement rules.
Based on a request by the ombudsman the national commander of the institution of enforcement of punishments investigated the case and informed the ombudsman of the fact that the complainant was late in submitting his request for a leave and his attendance of the burial ceremony of his relative could have been possible only under supervision but the convict could not afford the costs of such supervision. His request concerning a transfer to a prison nearer to his place of residence was satisfied and he was permitted to serve the remaining part of his sentence in the nearest such institution. The mediating activity of the parliamentary commissioner was successful in this case.
The action taken by the parliamentary commissioner lead to similar results in the case of another complainant who complained about the fact that he was subject to lighter enforcement rules the application of which was no longer possible in the prison where he had been serving his sentence up to that point in time and so he was transferred to Budapest. Due to the large distance it became more difficult for his relatives to visit him, and he would have liked to be transferred to an institution nearer to his place of residence.
Based on the request by the ombudsman the national commander of the institution of enforcement of punishments informed the ombudsman that the request for a transfer was satisfied and now the complainant was serving his sentence in the institution closest to his place of residence.
In another case a convict serving his sentence in Budapest asked to be transferred to the county prison so that he could be a lot nearer to his place of residence.
On request by the parliamentary commissioner the national commander of the institution of enforcement of punishments informed the ombudsman that the request had been turned down for t could not be satisfied, since the prisons near the place of residence of the individual are overcrowded.
In respect of the above examples the following should be mentioned.
The complex rules on the enforcement of sentences provide various entitlements to convicts. The first such right - that may be satisfied if possible - that is serving the sentence in an institution near the place of residence, has already been reported on.
The enforcement of the right to work during a sentence is also very important. Of course, unemployment in the economy does have an impact on the possibilities of convicts as well. Prior to the system change there was almost full employment in such institutions, since then, however, the rate of unemployment has risen among those serving sentences in prisons. In order to ensure the highest possible percentage of employment of convicts the competent authorities should promote the development of new forms of businesses and should make efforts to create new jobs. In comparison with the rule that the right to work cannot be restricted even during the enforcement of a sentence - or that working is obligatory according to the law - it should be noted that for objective reasons prisons can often not provide work for prisoners.
The Enforcement Code makes it possible to for a convict to serve his or her sentence under lighter rules than those applied by the prison after the serving of the statutory period of time. Decision on the application of lighter enforcement rules is made by the enforcement judge. Such lighter rules provide substantial benefits (e.g. frequent leaves, disposal over cash, reception of visitors outside the prison etc.).
The possibility of getting closer to the conditions of life outside prison is also promoted by the provision of the Enforcement Code according to which in the various types of prison those who have served a specific number of years off their sentences may be transferred to an interim group. This will also entail, like the lighter rules on enforcement, the possibility of taking leaves, working outside the institution, a larger freedom of movement, regular contacts with the probation officer, more direct disposal over cash etc.
The above benefits correspond to the up-to-date principles on serving sentences, on the one hand, they are aimed to enable convicts to serve their sentences under more human conditions, on the other hand, to make it easier for them to get reintegrated into society after release from prison.
The limited number of work places, the situation where in certain institutions it is not possible to apply the lighter rules on enforcement or to establish the above mentioned interim group, taking into account even the requirement of serving sentences close to the place of residence as well, impose limitations on the full application of the benefits. In some cases a convict has to give up one or more of his rights despite his good behaviour and the benefits so earned.
As a matter of course, the conflict could be resolved, instead of an amendment to the law, by the creation of more jobs depending on the improvement of the performance of the economy and by the improvement of the conditions of accommodation in prisons.
5.
Reports relating to courts of law
In closing this topic mention should be made of the issue - on which we have received much information and a lot of reports - but the validity of which we have not been able to verify. Those serving prison sentences often complain that they were sentenced because the members of the court were prejudiced against them. It has been revealed by social surveys that the proportion of convicts belonging to the Roma minority is relatively high in detention facilities - higher than their percentage of the population as a whole.
Some complainants asset that the practices of courts in ordering preliminary detention also result in a higher proportion of individuals of the Roma minority among detainees. Preliminary detention orders are issued where the suspicion of the individual is based on a serious crime or if it is feared that the suspect would go into hiding or flee or that his or her defence at large could make it impossible to conduct successful criminal proceedings. A judge deciding on preliminary detention exercises a broad power of deliberation, since the personal hearing of the suspect is aimed to acquire direct impressions and information on the extent to which the person before the court is willing to co-operate with the investigating authorities (police, prosecutor’s office) and whether the assumption of the investigating authorities concerning the need for detention is justified, for otherwise the suspect would not submit to the implementation of the various actions of the proceedings.
It is not possible to measure or to statistically show the composition of the group of individuals under criminal proceedings from the aspect of belonging to national and ethnic minorities, i.e. only techniques of sociology and estimates based on such techniques may be taken into account when drawing any conclusion. No such survey could be carried out in the first six years of the operations of the parliamentary commissioner for the rights of minorities.
6.
Demand for the definition of the concept of indirect discrimination
As has been made clear so far, discrimination is a definitely existing social problem in Hungary. The fact of negative discrimination, however, is often far less obvious than it is in the case of direct discrimination, i.e. when someone is assaulted, proceedings are started against someone or someone is excluded from the use of certain services on account of his or her belonging to a national or ethnic minority.
It is well known from international technical literature, the practices of various legal protection fora and from our own experience that there is a less obvious, often latent, indirect form of discrimination as well.
The definition of what is to be meant by indirect discrimination is a pre-requisite for the taking of any action against indirect discrimination.
Although over recent years - partly in response to initiatives taken by the parliamentary commissioner for the rights of minorities - some actions have been taken to clarify the rules on the concept, however, there still are no exact, precisely elaborated terms and concepts for negative discrimination. The work of the legislator may be characterised, in general, by the fact that the provision on the prohibition of discrimination following from Article 70/A of the Constitution as well has been more precisely defined in some sectoral laws, and in order to enforce it some sector specific procedural rules have also been introduced.
The best example may perhaps be cited from the realm of work. We were informed at a meeting in January 2000 with the Minister of Social and Family Affairs of the fact that the duties of the ministry included the elaboration of a draft act to amend the Labour Code (hereinafter: Mt.) with the aim - inter alia - of clarifying provisions prohibiting negative discrimination. We fully agreed with the objective that in the course of the codification of the draft the ministry intends to create a legislative definition for indirect discrimination - in a way hitherto unprecedented in the Hungarian legislation.
Action against negative discrimination in employment - primarily with respect to the employment of Roma individuals - is considered as an especially important task for our office. Therefore, we offered to transfer our experience accumulated in the course of our work along with our proposals worked out so far, to promote the success of the codification effort.
Our request was well received, the ministry also considered that our commenting on the new anti-discrimination rules of the Labour Code already in the preparatory phase, would be highly useful.
In view of the completed proposal we consider the finding of a mutually acceptable solution for the definition of the group of employees for which increased protection is intended to be provided by the new provisions of the Labour Code as the largest success of our negotiations conducted in May 2000 with the experts of the Ministry of Social and Family Affairs. Based on our proposal the draft not only covers the issues pertaining to negative gender discrimination. In addition, the draft contains a general definition for the concept of indirect discrimination, going beyond the contents of the No. 97/89/EC Directive that is the basis of legal harmonisation.
In essence, the definition elaborated by the experts of the Ministry of Social and Family Affairs was considered acceptable. However, we did submit some proposals, because the legislative effort of the ministry was focused on the introduction of provisions prohibiting negative discrimination of women. It did not pay adequate attention to discrimination based on age or on individuals belonging to national and ethnic minorities that are just as frequent cases, though not as evident as are cases of direct discrimination. Besides our proposal concerning the broadening of the contents of the draft we also expressed recommendations concerning the legislative definition of negative discrimination.
As a result of our co-operation with the experts of the ministry participating in the drafting of the law a draft act was prepared concerning the provision comprised in Article 5(2) of the Labour Code - establishing the legislative concept of negative discrimination - which has been submitted by the Government to the Parliament. If the amendment is passed by Parliament, the Labour Code would contain the following definition on indirect negative discrimination:
“…indirect negative discrimination takes place where the group of employees concerned can be considered ... as a more or less uniform group and the regulation, action, provision or practice pertaining to employment, imposing - formally - identical requirements on or providing identical rights for all persons, is disproportionately disadvantageous for them, except if this is appropriate and necessary and can be justified by objective factors”.
When read for the first time the definition may perhaps seem complicated, but practice proves that such detailed wording is necessary. In this respect attention should be paid to the fact that - with the active involvement of our experts - a detailed set of reasons of scientific precision have been put together, providing precise explanations for the various elements contained in the legislative concept of indirect discrimination. Especially, the meanings of the terms ‘more or less uniform group’, ‘formally identical requirements imposed on all’ and ‘disproportionately disadvantageous’ are precisely explained.
Those in charge of the application and enforcement of the law are not always aware of the fact that negative discrimination may take place in indirect forms as well. The above-mentioned proposed amendment to the Labour Code, for instance, uses the concept of ‘formally identical requirements, regulations, actions applied to all’ which - despite its apparent equality - may still result in negative discrimination. To illustrate this, let us quote a case - that is not related to employment, but that is rather descriptive and is probably well known from the media:
7.
The case of the ‘rubbish sifters’ of Tiszaújváros
The mayor of a municipality and the chairman of the minority self-government submitted an application to our office in which they complained against the category of misdemeanour specified in the decree of the neighbouring town concerning public sanitation and the collection of communal solid waste as ‘breaking of rules pertaining to the collection of communal solid waste’. They argued that fines imposed under a local decree - and often converted into detention - on account of misdemeanours are focused primarily on the Roma communities living in the neighbourhood, primarily on the individuals making their living from the utilisation of clothing, shoes and bits of dry bread picked from garbage containers in the town of Tiszaújváros.
In the course of our inspection we established that the local decree specified various obligations concerning the cleanliness of public places and concerning public sanitation. Furthermore, however, the decree also specified that ‘spilling, scattering or - with the exception of the authorised organisation - taking away garbage from the collecting containers is prohibited’. The local decree classifies the violation of this prohibition as a form of misdemeanour, which may entail the levying of a fine of hp to HUF 10,000.
Based on this category of misdemeanour fines were levied on 38 occasions. The fine was converted into detention on 15 occasions, of which the detention sentence was served in 7 cases. In the neighbouring municipalities another 273 misdemeanour proceedings took place and in fines were levied in 33 cases.
In response to our request for information the notary of the municipality pointed out that when wording the currently effective text of the local decree, ‘having spent substantial amounts on creating new squares, cleaning and improving the appearance of parks, squares and other public places, the council aimed to keep them clean’. In our view the regulation that categorises the spilling and scattering of garbage placed in the containers put out in public places is in line with this endeavour of the legislator.
By contrast, it is not possible to establish even a low level of danger imposed by the activity on society - that is the fundamental pre-requisite for categorising an activity as misdemeanour - when someone takes out some piece of garbage placed in the container that may still be used in some form (e.g. bottles, dry bread). For this behaviour does not violate the public interest intended to be protected by the local decree - that is to keep public places clean.
This is confirmed by the fact that the rest of the elements of the ‘misdemeanour’ (spilling, scattering of garbage) are essentially in line with the criteria of the misdemeanour category specified in the Government Decree on public sanitation (dropping litter, spoiling public places) the ‘taking away’ is an additional element.
The right to specify what activities constitute misdemeanour ensures the possibility for the local government to specify the sanction required for the enforcement of the statute introduced by the local government. The aim of this is to enable the local government to apply sanctions to the violation of the administrative statutory regulations and the rules on social co-existence as specified in local decrees. However, a local governmental decree cannot be contrary to higher level legislation and ‘cannot categorically prohibit behaviour or activities that are specifically permitted by higher level legislation’. This fundamental statement was issued by the Constitutional Court in its Resolution No. 6/1995. (II.22.) AB.
Article No. 127 of Act IV of 1959 on the Civil Code (hereinafter: Ptk.) provides concerning the act of taking possession of unclaimed property that if a ‘thing’ is not owned by anyone, it may be taken into ownership by anyone by taking possession of it.
In our opinion it cannot be doubted that by putting items regarded by the Civil Code as ‘thing’ into the garbage container its owner gives up his/her ownership of the ‘thing’ therefore tit may be taken possession of as a ‘masterless thing’.
Consequently, we established that the sections of the local decree that categorise the taking away of garbage put in garbage containers as a misdemeanour prohibit a behaviour that is specifically permitted in a higher level piece of legislation - the Civil Code - thereby they break the provisions of Article 44/A(2) of the Constitution on the regime of legislation.
In the course of our proceedings we also investigated whether the local decree violates the prohibition of negative discrimination as specified in Article 70/A (1) of the Constitution.
The regulation introduces a prohibition equally applicable to all with the exception of a designated organisation, therefore, it cannot be regarded as directly discriminative. The equal application of the prohibition, however, is only formally true. The sanctioning of the removal of garbage is applied obviously only against individuals belonging to a specific social group. The local decree has to be applied in an environment where a specific group of the local population is forced by its social position to break this prohibition. The prohibition and sanctioning of the removal of garbage results in an unnecessary and disproportionate disadvantage in this situation. On the one hand, because the categorisation of the removal of garbage from the garbage containers as a misdemeanour is not justified by the public interest that is intended to be protected. On the other hand, because the sanction that may be applied based on the regulation threatens individuals who cannot pay the fine so imposed or for whom the payment of the fine is very difficult.
This regulation results in a situation where the individuals who need to go collecting reusable garbage in order to earn a livelihood, suffer material disadvantage.
Owing to the provisions comprised in the effective statutes of law we could have no statistics on the ethnic composition of the group of individuals on whom fines had been levied having committed what was categorised as misdemeanour. However, according to the chairman of the Roma minority self-government who submitted the complaint, each of the residents on whom the proceedings were applied, were Roma individuals living in disadvantage conditions, near the poverty line.
Although the sanctioning of the misdemeanour is aimed actually against those living under poor social conditions and not against members of the Roma community per se but the majority of those who suffered the disadvantage actually belonged to the Roma minority.
The local government could not exclude from the town the individuals living in poverty who regularly went into town to collect reusable garbage, therefore, it applied an apparently neutrally defined category of misdemeanour to keep ‘undesirable’ individuals off the town.
Accordingly, we considered that the misdemeanour category as specified in the local decree results in indirect discrimination against individuals living in the vicinity of the town, belonging to the Roma community, whose livelihood comes, to a material extent, from the re-use of clothing, shoes and dry bread picked out of garbage containers. By the discriminative nature of the regulation the local decree enabled the causing of unnecessary and disproportionate disadvantage against a specific group of the population, violating thereby the provision comprised in Article 70/A of the Constitution - prohibiting negative discrimination - therefore , for the first time we established that a local statue constituted indirect discrimination in respect of its effects.
In order to remedy the irregularity we requested that the council modifies the local decree on public sanitation and the collection of local communal solid waste, in order to remove the prohibition on the removal of garbage placed in garbage containers. We also requested that the notary terminates the misdemeanour proceedings in progress, started on account of the part of the definition of the misdemeanour category of ‘violating rules on the collection of communal solid waste’ prohibiting the removal of garbage from garbage containers.
Our initiative was rejected by the council and the notary, therefore, we turned to the public administration office and to the county chief prosecutor’s office. These organs informed us that they did not consider the misdemeanour category as contrary to the law.
Thereafter, maintaining our position in an unchanged form, we turned to the supreme prosecutor, requesting a review of the position of the county chief prosecutor’s office. The supreme prosecutor agreed with us on that constitutional concerns are perceived with respect to the removal of garbage, therefore, the supreme prosecutor submitted a request to the Constitution Court to abolish this section of the local decree with retroactive effect from the date of its entry into force. The Office for the Protection of the Rights of National and Ethnic Minorities submitted a request of similar contents. The Constitution Court has not yet made its decision on the above request at the time of the completion of this report.
The above case shows that a general prohibition of negative discrimination often fails to meet its target. Law enforcement authorities can take action against negative discrimination if they know precisely what forms of behaviour are contrary to the statutory prohibitions. In the case of an indirect form of negative discrimination, however, it would not be possible even to compile just a list of examples. For in such cases the various forms of behaviour cannot be judged in themselves, the impacts and results of such behaviour forms also need to be assessed on a case-by-case basis.
8.
Rhetoric of ‘hatred speech’, or our cases relating to the media
This topic is discussed under a separate heading because practices of prejudice, stigmatising and exclusion through the media have a number of special features in comparison with other forms of behaviour qualifying as negative discrimination. The reporting of one-sided, negative opinions that are suitable for triggering hostile attitudes - particularly where it originates obviously from racial prejudice and a ‘sense of superiority’ - has numerous similar features with the direct form of negative discrimination.
A the same time, we are aware of the fact that the freedom of speech is an especially important freedom declared in the Constitution, which may be restricted only under exceptional circumstances. The following is a description of the most important concepts pertaining to what is often referred to as ‘hatred speech’ and an outline of the limits of what is permissible and the limits of equality in law. We shall describe cases where the parliamentary commissioner for the rights of minorities had to deal with media-related issues, outlining the possibilities available for the parliamentary commissioner for investigation and proceedings in the case of racist statements or statements suitable for the confirmation of detrimental stereotypes made before large audiences.
9.
The concepts of ‘arousing of hatred’ and of ‘instigation of hatred’
The Criminal Code does use the term ‘instigation of hatred’ but it does not give it a precise definition.
The category in the criminal code of incitement against a community was established by Article 15 of Act No. XXV of 1989, however, paragraph (2) of the Article was abolished by the Constitution Court [No. 30/1992. (V .26.) AB Resolution] in the course of ex-post norm control. Prior to the decision by the Constitution Court the category of incitement against a community was defined as follows:
“Article 269. (1) A person instigating hatred before a large audience against the Hungarian nation, any national or ethnic minority, race, religious group or any particular group of society or commits any other act suitable for the arousing of hatred, shall be sentenced to up to three years’ detention for a criminal offence.
(2) A person who uses any expression or commits similar act insulting or demeaning the Hungarian nation, any national or ethnic minority, race, religious group or any particular group of society before a large audience shall be punished by a detention sentence of up to one year, or shall be punished by corrective training or by a fine, for delinquency.”
The procedure by the Constitution Court took place in response to a number of motions requesting the establishment of violation of the Constitution. Furthermore, the ex-post norm control was necessitated by the particular reason of the suspension by the Central District Court of Pest of an ongoing procedure concerning a criminal offence, asking for a position statement by the Constitution Court for it regarded Article 269 of the Criminal Code as a provision contrary to the Constitution.
The provision in question applies a sanction to two - distinct - types of behaviour. Paragraph (1) orders the punishment of the criminal behaviour of ‘instigation of hatred’ while paragraph (2) specifies ‘the use of insulting/abusive or demeaning expressions or the committing of similar act’ (use of insulting/abusive language) as behaviour constituting the delinquency.
In the course of its proceedings the Constitution Court assessed the following issues:
The role of the freedom of speech in a state governed by the rule of law, based on a constitution.
The review of the term ‘instigation of hatred’ from the aspect of the constitution.
The review of the term ‘use of abusive language from the aspect of the constitution.
The behaviours specified Article 269 (1) and (2) of the Criminal Code as constituting the offence and delinquency covered by the Article are equally related to rights pertaining to the freedom of speech and the freedom of the press as specified in Article 60 (1) and (2) of the Constitution, respectively.
The legislator intended to restrict such fundamental rights by the stipulation of the application of criminal sanctions - the most serious means available in the system of responsibility for one’s actions.
Therefore, the Constitution Court had to assess whether the restriction by the Criminal Code of the freedom of speech is justified or not and if it is, whether the extent of the restriction (threat of punishment) is in proportion with the objective to be accomplished.
The Constitution Court explained in several resolutions - including its resolution No. 30/1992. (V. 26.) AB - that ‘the freedom of speech is of outstanding importance among fundamental constitutional rights, in fact it is a ‘parent right’ of a variety of freedoms, including for instance the fundamental rights of ‘communication’’. (For the freedom of conscience, the freedom of religion and the freedom of association are also related to the freedom of speech).
The Constitution Court established that the instigation of hatred against specific groups of people have historically proven detrimental impacts: ‘the spreading of views asserting inferiority or superiority based on ethnic, racial, national, religious etc. grounds, of hatred, detestation or exclusion threaten the values of human civilisation’.
Consequently, the Constitution Court took the position that ‘constitutional protection of the instigation of hatred would be in irresolvable conflict with the political establishment and values expressed by the Constitution ...’.
Restriction of the freedom of speech by rules comprised in the criminal code, however, is not contrary to the Constitution only if it meets the criterion of necessity of restriction and proportionateness of restriction.
In its arguments the Constitution Court stressed that the international commitment of the Republic of Hungary also necessitates and justifies the restriction of the freedom of speech as specified in the Constitution. For according to the Protocol on Civic and Political Rights ‘any form of expression of ethnic, racial or religious hatred instigating discrimination, animosity or violence, shall be prohibited by law’.
At the same time, it is a constitutional obligation on the legislator to define the behaviour it intends to sanction, in a clear way, excluding the possibility of arbitrary interpretation of the law. According to the practice of the application of the law - which is considered as suitably uniform - the concepts ‘instigation of hatred’ and ‘incitement’ mean the arousing of negative, intensely hostile feelings comprising strong antipathy, without sober consideration, resulting in a state incapable for the objective assessment of facts and for the consideration of conflicting arguments.
According to the behaviour ordered by Article 269 (1) of the Criminal Code is, therefore, not only comprised of the arousing or inciting of hatred. It covers instigation of hatred which is none other than the emotional preparation of hostility and/or a definite attempt to trigger hostility.
According to the dictionary of definitions of the Hungarian language (Magyar Nyelv Értelmezõ Szótára): ‘Hatred is one of the most extreme, negative, highly hostile impulse. A person instigating hatred urges, stimulates, instigates hostile behaviour, hostile and damaging activity against a person, group, organisation or action’.
Considering that ‘instigation of hatred’ was already defined as the criminal category in the Csemegi Code, those in charge of applying and enforcing the law may rely on over a hundred year’s tradition in the interpretation of the concept. Supreme court devoted several verdicts to the concept of ‘incitement’ already at the end of the 19th century. According to the explanation applied by the supreme court a hundred years ago ‘instigation does not mean the expression of a negative or insulting opinion, rather, it is to be understood as rebellious outbursts, that are suitable for arousing passionate feelings in a larger group of people to an extent where hatred may arise and where the result may be the disturbance of social order and peace’. ‘Criticising, disapproval, contesting or even an insulting statement should, therefore, not be interpreted as incitement: incitement is where expressions and comments etc. are not addressed to one’s judgement, instead, they are meant to impact emotions and are suitable for the arousing of passionate and hostile impulses’.
It should be highlighted that from the aspect of the action of ‘incitement’ it is entirely immaterial whether the allegations are valid or not: the point is that the categorisation and disclosure of real or unreal data is suitable for the arousing of hatred.
In respect of the delinquent behaviour covered in Article 269 (2) of the Criminal Code - the concept of ‘use of abusive terms’ - the Constitution Court stated that the proposal of the sanction under the criminal law against the expression of negative judgements before large audiences (in the press or at assemblies) is disproportionately serious, it imposes a disproportionate limitation on the right to the freedom of speech. For in this case only an ‘abstract’ and potential treat of public unrest may be present, which does definitely have some threat to the society, however, it can be sanctioned by means outside the scope of the criminal law.
The Constitution Court also pointed out that the concept of ‘public rest’ itself is not independent of the situation in respect of the freedom of speech. ‘Where people may face a variety of opinions, the public will be tolerant, in a closed society even a single unusual voice may stir public unrest ... Any unnecessary and disproportionately severe restriction of the freedom of speech will be detrimental to the openness of society.”
In the reasons attached to its resolution the Constitution Court explained: ‘The usage of the term ‘instigation of hatred’ and the term ‘use of insulting or demeaning expressions’ should be distinguished. Apart from assemblies, rallies, the term ‘large audience’ usually means the publicity of the media. In the now established freedom of the press no one may rely on the excuse of external force: a person who goes out to face the public, will give himself or herself, risk his or her moral credibility, by each line that he or she may disclose in writing. The evolution of political culture and a public opinion of healthy responses may take only through a self-purifying process. People using abusive terms will stigmatise themselves before the public as ‘an abusive person’. The use of abusive terms should be met by criticism. This process should also include substantial damages. But the punishments and penalties provided for by the criminal law are, however, not to be applied in order to develop public opinion or political style - this would be a paternalistic approach. They are to be used as sanctions to protect other rights, in the cases where the application of sanctions is indispensable.’
Accordingly, therefore, the Constitution Court abolished the criminal category specified in Article 269 (2) of the Criminal Code - often referred to as ‘use of insulting or abusive terms’.
A large number of requests and complaints are submitted to the parliamentary commissioner in which the complainants claim - among other things - that representatives of the authorities falling within the investigation competency of the parliamentary commissioner use rough language with them including insulting and demeaning expressions (‘gypsying’).
It is rather difficult to give evidence of such practices, on the one hand, because there are no witnesses, or if there were witnesses, it would be impossible to find them.
Consequently, it is possible to report only on cases in relation with the concept of ‘hatred speech’ that are related to statements, value judgements that have appeared in the media.
A number of submissions have been received on complaining about ‘jokes’ insulting the Roma minority. We have initiated, on several occasions, investigations to be carried out by the Complaints Committee of the National Radio and Television Board (ORTT) which then established that certain ‘rough jokes are suitable for strengthening prejudices in the society against the Roma minority through associations or in direct forms’. Therefore, the proceeding council of the Complaints Committee of the ORTT called on programme providers on various occasions to comply with the provisions comprised in Article 49 (1) of Act No. I of 1996 on radio and television (prohibiting one-sided information and the principle of balanced information).
In such cases - despite the fact that some scenes of cabaret programmes are suitable for imparting negative impressions of the Roma minority - no ‘hatred speech’ can be established for there is not even a suspicion of any intent of instigating hatred.
Another, a lot more serious case, also known from the media, is related to the moving of Roma families from the village of Zámoly to the village of Csór. Channel M1 of the Hungarian Television made an on-site report on the case and the reporter and the programme-host made the following statements:
“...Roma families moved to the village at Easter from Zámoly, and since then local residents say that the number of robberies has increased dramatically ... Residents of the village were appalled to see that their village is full of Romas. The last straw was when yesterday and the day before yesterday no less than six houses were robbed in the village.”
One local resident - interviewed by the reporter - called on the Roma families to leave the village for ‘they have been stealing everything’.
Thereafter the mayor of the village declared in the live programme with respect to the Roma families that ‘they have nothing to do in this country amount people, for even animals will expel parasites’.
Procedure by the Complaint Committee of the National Radio and Television Board was also requested by the ombudsman with respect to the above case. The Committee then stated in its ‘News’ programme the Hungarian Television had ‘violated the provisions comprised in Article 3(2) and (3) of Act No. I of 1996 on radio and television for it broadcast a programme containing statements suitable for instigation of hatred against an ethnic minority group’.
(It should be noted with respect to this case that those speaking in the programme also satisfied the criteria of ‘slander’ and ‘moral insult’ by making statements suitable for the impairment of one’s moral renown and by the use of insulting/abusive terms, however, those concerned had not submitted the private charge necessary for the conducting of the criminal proceedings. This case is a good example for the necessity of the codification of the above mentioned misdemeanour for this is definitely a type of behaviour that has objective threats on society which should be sanctioned irrespective of the subjective will or possibilities of those actually offended. In comparison with the system of sanctions of the criminal law - which is the ‘ultimate means’ of social regulation - the threat of the application of sanctions against such behaviour categorised as misdemeanour, would be an expedient and proportionate alternative. For the sake of completeness it should be mentioned here that according to information supplied by the prosecutor’s office there was not even a trace of suspicion of any offence against property that would have been committed by any one of the Roma individuals who had moved to the village of Csór.)
Similar cases were met not only in the electronic media but in the press as well:
An individual submitted a complaint against the regular publication of regular notices insulting the local Roma minority in the Newsletter of Kecskemét Town of County Right - a paper for local information. What is more, such communications are published in the form of calling on Hungarian residents to ‘actively’ protect themselves (‘HUNGARIANS, PROTECT YOURSELVES’) against damage allegedly committed by Roma individuals.
We submitted a claim to the chief prosecutor’s office of Bács-Kiskun county calling for criminal proceedings with respect to the case on account of incitement against a community. The investigating authority refused to conduct an investigation on account of the lack of criminal offence. According to the reasons attached to the resolution by the prosecutor’s office ‘the articles in the Newsletter did not call on people to join forces against the Roma minority as a whole. It called on people to act against persons breaking the rules of coexistence in society and those breaking the law, displaying behaviour in the territory of Mûkertváros in Kecskemét intimidating, harassing residents and causing damage’.
The chief prosecutor’s office also stated that the ‘criticised sections of the Newsletter did not instigate hatred against the Roma minority as an ethnic group’.
A complaint of similar contents was submitted to the ombudsman’s office against another local publication, circulated in Budapest. An article entitled ‘Serial violence’ appeared in the local paper Kõbányai Hírek containing sentences such as: ‘The older Roma assailant yanked the man with the bag, pushed him to the door, hit him several times in the stomach. The younger one took out his knife ...”
The complainant asked us to establish whether the wording of the above mentioned article violated rights granted in the act on minorities.
In respect of this case we established that the suspicion of the criminal category of incitement against a community cannot established and - since the article mentioned no concrete individuals - no personality rights had been violated. Nevertheless, we drew the attention of the competent local government to that in such reports it is not necessary to mention that perpetrators belong to one or another minority. The council discussed the case and the mayor promised on behalf of the council, to avoid such breaches of ‘media ethics’ in the future.
In summary, in such cases no instigation of hatred could be established despite the fact that the publication of similar reports of minor weight, reports that cannot be brought to law, may, in a longer run, promote the aggravation of prejudice against the Roma minority.
Those committed to the protection of rights of minorities have been complaining for quite some time about the fact that although the Constitution declares severe sanctioning of violations involving negative discrimination, the domestic legal system only partly satisfies this constitutional requirement. This was one of the motives for the preparation in October 2000 by the office of the ombudsman in charge of issues pertaining to minorities of a draft act on actions against racism and xenophobia and the provision of equal treatment (hereinafter: draft).
Although discrimination may emerge in any area of the society in principle. the draft is concentrated to cases where those exercises public power in a broader sense and various public service providers have been found to most frequently carry out activities of such motives, or to follow discriminative practices.
Although in professional circles and in the Parliament’s Committee for Human Rights, Minorities and Religious Affairs the draft was well received its future is not yet certain.
12.
Means of the law on misdemeanours, against negative discrimination
Before assessing the system of sanctions comprised in the draft, mention should be made of the fact that the ‘specific part’ of the radically renewed legal regulations on misdemeanours has retained, without any change, the category of ‘Negative discrimination of employee’ sanctioning negative discrimination in employment, which imposes up to HUF 100,000 on employers who
“– refuse the employment of a would-be employee with regard to age, gender, ethnic minority, race, origin, religion, political conviction, membership of interest representing organisations of employees, or related activities, or on account of any other circumstance not relating to employment, or
– apply any negative discrimination among employees on account of the factors listed above”.
The category is considered as relatively new, for it was incorporated in the law on misdemeanours by Government Decree No. 38/1997. (III. 5.).
As a matter of course, those in charge of the application and enforcement of the law do have to know what behaviour actually qualifies as negative discrimination.
According to the position statement issued by the Labour College of the Supreme Court discrimination clearly originating from the nature or type of work, particularly discrimination based on material and legitimate conditions or criteria that need to be taken in employment, shall not qualify as negative discrimination. For instance, an employer may legitimately insist on employing only men in various positions where the type or nature of the work would exclude the employment of women (MK No. 97).
A procedural problem may arise in the application of this category of misdemeanour. Pursuant to Article 5(2) of the Labour Code (hereinafter: Mt.) where a dispute arises with respect to the violation of the prohibition of negative discrimination the employer has to prove that his procedure did not break the prohibition. According to the established practice the employer has to prove the reason even if he did not have to justify an action he has taken, but he did communicate the reason for his decision. (Court Decisions 1998.610).
If in a labour dispute the Mt. reverses the obligation to supply evidence, the question is whether this may be applied to misdemeanour proceedings.
In our opinion this is not permitted by the cardinal principle of proof comprised in Act No. LXIX of 1999 on misdemeanours (hereinafter: Szabs. tv.), the requirement of the assumption of innocence. Giving evidence will definitely be more complicated in this way, for it is well known that discriminatory decisions by employers do not state the actual reasons. They usually refer to ‘objective’ aspects relating to the mode of work performance, the lack of skills, unreliability of the employee or other ‘disciplinary’ problem.
An even more important problem is, however, the question of the frequency of the application of this category of misdemeanour. Because the impact of a sanction norm is realised not by its abstract existence, it operates as a deterrent through its application relentlessly enforcing legal compliance, based on the inevitability of accountability, for actual or potential offenders.
The problem with this category of misdemeanour is not that it ‘imports’ responsibility under public law or, in certain cases, responsibility under the law on misdemeanours in a contractual relationship, that is in the legal dispute between employer and employee. The problem is rather, that the dispute is between parties of rather unequal weights. An employee has to take up the fight with a ‘firm’ enjoying obvious advantage in terms of information and power. The employee will practically loose his chances for an agreement with the employer if making a charge for a misdemeanour as well as for the out-of-court compensation of the financial and moral loss suffered by the employee. On the other hand, since the law on misdemeanours does not recognise the responsibility of a legal entity, the ‘real’ perpetrator has to be identified in a complex organisation which is a difficult undertaking of uncertain outcomes, even if it is not downright impossible.
Should an employee of an average level of qualifications be expected to have the level of ‘civil courage’ that would be required for the initiation and completion of such a procedure?
In view of the above, it is justified to come to the conclusion that such charges of misdemeanour should not be expected to be made even if there were a large number of cases where the employee exercises negative discrimination. This does not mean that the misdemeanour category is not necessary, it ‘only’ draws attention to the fact that in the selection of a sanction that is adequate to a given violation, the social background of the given behaviour, the social status of the aggrieved party and the offender and their particular motives of interest.
13.
On the nature of sanctions - in general
The concept of ‘sanctions’ is still subject to disputes in the Hungarian literature on law.26 In our view sanctions could be discussed both from the aspect of performance and in a repressive sense:
a) if it is possible to restore the situation before the misdemeanour the sanction should primarily aim to force the perpetrator to do so, or to create a situation as if the misdemeanour had not taken place (reparative sanction),
b) if the situation cannot be repaired, the punitive nature of the sanction is applicable, and the addressee has to expect a disadvantage in proportion with the violation in respect of his identity, wealth, social position etc. (repressive sanction).
The two legal disadvantages fundamentally differ from one another in terms of impact and mode of enforcement. Reparation promotes the enforcement of the law directly, i.e. it aims to help the aggrieved party. By contrast, the instrument of repression does not provide any direct remedy to the aggrieved party (some moral amends, at best), but it is not suitable either to efficiently ‘re-direct’ the perpetrator towards legal compliance. Indeed, if the legal disadvantage is disproportionately severe relative to the violation of the law, it may result in an intensive rejection and defiance.
Since the public administration law - in contrast to the criminal law and the law on misdemeanours - is fundamentally future-oriented, thinking in terms of resolving and performing public duties, its ‘nature’ would also force it to strengthen the reparative side of sanctions that have a stronger preventive impact and, wherever possible, to aim to promote the improvement of the situation of the aggrieved party, instead of simply administering punishment.
Nevertheless, the public administration legislation practices followed over the past decade are contrary to this requirement. The illusion of the public administration system - the stronger the repressive type of abstract threat the more effective the special and general deterrent impact will be - seems to be a rather persistent feature.
Our experience warns us, however, that this is only an apparent threat, since, on the one hand, these sanctions (primarily fines under the substantive law) are seldom applied, on the other hand (without mature jurisprudence and clear-cut statutory rules) it is highly unpredictable who will be fined, under what proceedings, with or without regard to culpability and what aspects will be taken into account in deciding on the application of a fine.
14.
General characteristics of the system of sanctions comprised in the draft
A number of international norm and agreement - ratified by Hungary as well - specify prohibitions concerning the instigation of hatred and concerning incitement against national and ethnic minorities, religious groups etc. (For instance, the Treaty of New York on the ‘elimination of all forms of racial discrimination’, promulgated in Hungary by No. 8 law-decree in 1969, the Protocol on Civic and Political Rights ratified by law-decree No. 8 of 1976 and other agreements).
Now we would like to refer to a recently produced document - binding only the 15 Member States of the European Union - that is the No. 2000/43/EC Directive adopted on 29 June on the ‘on the application of the principle of equality of treatment of individuals, irrespective of racial or ethnic origin’.
The directive provides a general prohibition of cases of discrimination based on racial or ethnic grounds, and it offers an ample supply of definitions of terms.
From the aspect of our theme here paragraph 11 of the Preamble should be highlighted, which declares that ‘the harassment of persons or groups on account of racial or ethnic origin which is intimidating, hostile or aggressive, or that disturbs the environment, shall qualify as discrimination’.
The contents of the concepts of ‘harassment’ and ‘persecution’ are not clarified, despite the fact the concept of ‘persecution’ is applied in various statutes, and it is a key category of the Geneva Convention of on the rights of refugees.
In the spirit of the directive the EU Member States (and candidate countries) will have to adopt their national laws prohibiting racial discrimination by year 2003. This will probably involve the definition of the concept of ‘harassment’.
Based on the analogy of the concept of ‘persecution’ as used in the regulations on refugee issues a concrete draft has been prepared by the office of the ombudsman in charge of issues pertaining to minorities which will be described below.
The draft reviews acts categorised as discrimination that may be considered as typical (frequently occurring) in six dimensions of social life (employment, education, the social/welfare area, health, public administration and public services) and adjusts the applicable legal disadvantages to the ‘characteristics’ of these areas.
The reparative and repressive versions of sanctions as well as their application in combination, are covered by the draft. For where discrimination is committed with respect to an already existing benefit or service or one that is intended to be obtained (employment, education, social/welfare area) the draft prefers the reparative type consequences. It prescribes the provision of ‘amends’, compensation or the restoration of the original status or the ex-post provision of the benefit (service) that failed to be provided as a consequence of discrimination.
Where, however, discrimination materialises in a one-off and ‘irreparable’ violation (in the health sector, public administration or public services) or if the perpetrator will not remedy the situation, repressive type sanctions are to be applied.
Accordingly, the draft aims to provide the widest possible range of possible sanctions and it is fundamentally new in comparison with the ‘single dimension’, fine-oriented sanction system of the public administration. From differentiated types of fines, through the mandatory disciplinary actions, the suspending of managerial mandates, exclusion from tendering for subsidies to the restriction of participation in economic activities, the draft lays out a very wide range of possible legal consequences.
It should be noted that in the course of the technical debates on the draft so far the smallest number of critical remarks have been aimed at our proposals concerning the sanction system. This does not mean, however, that we consider the ‘collection’ we have proposed, as final or perfect.
1. The effective legislation on misdemeanours in Hungary does not provide for the separate application of sanctions on ‘harassment’ type activities while people have to experience, on countless occasions - at work, in the street, in public places - various types of harassment violating their dignity, their good taste, restricting their freedom of will etc, based on a wide variety of motives.
Behaviour that is suitable for the disturbance of public order, public nuisance, (disturbance of public order, disturbance of peace at night, endangering with one’s dog, begging that constitutes harassment of people) is of course ‘harassing’. These, however, are often no more than a single act of violation, limited in time and space, without the aggrieved party expecting longer term and negative social consequences to be suffered by the offender. Considering also that the directive specifically mentions this type of ‘treatment’ we considered that it was time to introduce the category of ‘harassment’ in the law on misdemeanours as an alternative proposal.
Version ‘A’ sanctions only actions that entail exclusion, based on ethnic grounds, thus it is fully adjusted to the subjective scope of the draft. The lack of violence and threat in such activity is a negative requirement for otherwise the criminal offence of ‘violence against member of ethnic, national, racial or religious group’ as specified in Article 174/B of the Criminal Code would be committed.
According to the draft
• a person who applies treatment involving negative discrimination against a person or a group on account of their actual or assumed ethnic origins that is suitable for the promotion of the development of a hostile, excluding environment against the group, and/or
• discloses facts, value judgements concerning an ethnic group in a way that is suitable for the promotion of the development of a hostile, excluding environment against the group, may be punished by the levying of a fine up to HUF 100,000.
The misdemeanour category - similarly to the above mentioned Article 174/B. of the Criminal Code - is aimed to sanction alleged belonging to a minority as well, i.e. it would become much easier to prove the motive of the act. The concrete contents of discriminative treatment will obviously be developed by the practices of judges and the public administration system, however, the term ‘treatment’ refers to the repetitive or persistent nature of the same form of behaviour.
It should also be noted that it is a threatening category of misdemeanour, i.e. the actual development of the hostile or excluding environment is not a requirement for the establishment of that such misdemeanour has taken place (if such environment actually develops, this circumstance has to be taken into account as an aggravating factor in imposing the punishment). The objective possibility of the development of the hostile or excluding environment is sufficient.
The second turn intends to sanction manifestations in the media - that are currently not sanctioned or that qualify as petty offences against the media ethics - that have no concrete addressees in the form of given individuals, which, therefore, do not meet the criteria of the petty offence or misdemeanour of a moral insult or slander and - without individual involvement - no legal action may be started for the violation of personal rights.
If, for instance, someone uses abusive terms concerning gypsies in general (goes on ‘gypsying’) in the press, if such texts do not reach the degree of instigation of hatred or incitement that required for the satisfaction of the criteria of the category of ‘incitement against a community’ as specified in Article 269 of the Criminal Code, ‘only’ qualifying as ‘use of abusive terms’, the law offers no sanctions to the behaviour. The category of misdemeanour as specified in the draft at least makes an attempt to fill in this gap - through we have no illusions concerning the deterring power of the threat of the sanctions applicable to such misdemeanour.
Version ‘B’ is more or less aligned to the general anti-discriminatory provisions of the Constitution (Article 70/A), going beyond the draft’s ethnic ‘message’, its substantive scope. (Although membership of a political party is not included in the itemised list of discriminatory situations but - as a circumstance that is the basis of ‘harassment’ - the term ‘other situation’ ‘covers’ practically all other unspecified discriminatory situations.)
Version ‘B’ makes it possible for the legislator to assess whether it is time to threaten the various forms of discriminatory harassment with a general type of offence category.
In the drafting of the proposal we assessed the need of the introduction of a clause on impunity under which a person would not be punishable if he or she commits the act qualifying as ethnic harassment for purposes of dissemination of knowledge, education for scientific or artistic purposes or to provide information on events of history or on current events. Finally, we decided that the limits of impunity so introduced would be excessively broad and would enable misuse of the rule. If a concrete opinion - even if offensive - is expressed as part of a real scientific presentation then this may be regarded as compliant without any specific difficulty - for lack a threat on society, without which there are no grounds for a punishment.
(If accepted, the misdemeanour category proposed in our draft will over cases referred to as ‘hatred speech’ and it will sanction potential cases of treatment of persons and groups resulting in hostile or excluding environment including of course the use of abusive terms constituting direct discrimination and the disclosure of facts and value judgements as well, by means of the so called misdemeanour law (petty criminal law), if not the means of the Criminal Code. It depends on the decision by the legislator whether it defines the misdemeanour category in comparison with the above result oriented [‘is suitable for’] form in the form of an act aimed to accomplish an objective in which case the misdemeanour would be committed by behaviour ‘aimed in order to create hostile excluding environment.)
2. It is well known that the No. LVIII Act of 1997 on economic advertising activities (hereinafter: advertising act) abrogated the misdemeanour category of ‘unlawful advertisement’ which had been regulating the disclosure of ‘immoral advertisements’ since 1972.
According to the misdemeanour category then applied “...a person disclosing - or causing the disclosure of - advertisement contrary to the law, violating public morals or suitable for the misleading of those concerned, may be punished by a fine up to HUF 10,000”.
In the effective legal regulations the concept of ‘advertisement’ is not properly defined, it does not distinguish between announcements and commercial advertisements. For there is a world of difference between someone advertising a product or service with the aim of increasing the propensity to buy, or if one intends to ‘merely’ sell or buy a product or service. For if the advertisement act or the act on misdemeanours prohibits immoral advertising, it does not cover advertisements disclosed to the public, with the aim of selling products or services, that have discriminative contents or that otherwise violate or threaten public order.
Another problem faced by those applying/enforcing the law originates from the fact that ‘public moral’ is an uncertain legal term, the definition of which is not only missing from the Hungarian public law and legal practices, but even the Constitution Court refused to undertake to give it a definition. The Constitution Court also left the elaboration of the content elements of the concept to court practice.
Today, there are concrete prohibitions on advertising in the act on misdemeanours and Act No. LXXV of 1999 where the advertising of sexual services falls under the category of misdemeanour and that of violation sanctioned by public order protection fine.
In our view, at present there are no sanctions on advertisements that are contrary to statutory prohibitions or that are suitable for misleading those concerned, including advertisements containing ethnic discrimination.
In this case again, the legislator has to decide according to a similar logic: the legislator may be content with the ‘narrower’ prohibition only of advertisements containing ethnic discrimination or those enabling the drawing of such conclusions, or ‘brings back’ the rule introduced in 1972, in which case version ‘B’ of the draft would be more appropriate.
Finally, attention should be paid to the fact that ‘advertising/announcement’ based misdemeanour cases have two perpetrators: besides the entity posting the advertisement, the responsible employee of the media organ is also responsible for the misdemeanour. It should also be recognised that - as is reflected by the practice of the legal regulations prohibiting the advertisement of sexual services - preparations have to be made for highly difficult procedures for the production of evidence, where not only concrete words may be of importance but the whole of the ‘message’ conveyed by the whole of the advertisement may be decisive.
15.
Proposals concerning the re-regulation of abuse of authority
It is well known that the aim (design) of causing unlawful disadvantage or that of the gaining of unlawful advantage is a special element of the criminal act of abuse of official power as specified in Article 225 of the Criminal Code.
The commissioner for the rights of minorities has initiated criminal proceedings against officials - for instance mayors - on the basis of grounded suspicion of abuse of authority. The prosecutor’s office refused the criminal investigation in one case and terminated criminal investigation in two cases. The main element of the reasons attached to the resolutions was that the existence of the aim (design) could not be proven to the ‘extent’ required for the accusation.
In our view, the mayors concerned were proven to have exceeded their scopes of power, they definitely caused unlawful disadvantage, i.e. they met other criteria of the category of offence as specified in the criminal code.
In view of the drafting efforts relating to the preparation of the new Criminal Code we made a proposal to the codification committee working at the Ministry of Justice concerning the re-regulation of the criminal offence of abuse of power. (In 1999 we already conducted discussions on this topic with the parliamentary commissioner in charge of citizens’ rights and with senior officers of the Ministry of the Interior. The necessity of an amendment was recognised at both fora.)
Our proposals made at the negotiations conducted in 1999 included the following
a) a privileged mode of committing offence should be created that contains results on the one hand (illegal disadvantage) and at the same time does not require the aim (design) contained in the basic case,
b) there should also be a form of the offence based on recklessness/negligence.
Having reviewed the proposals made in 1999, we have come to the conclusion that negligent or reckless perpetration is alien to the nature of the offence of abuse of authority, on the other hand, breaches of duty or cases when limits of scopes of power are exceeded based ‘only’ on unprofessional work, lack of experience, lack of information, carelessness etc. may be properly sanctioned by disciplinary actions.
We do maintain, however, that a mode of perpetration - where besides the established detrimental result, the mere awareness of the breaching of duty on the side of the subject is sufficient - should also be classified as a criminal act. I.e. it is not possible to confer legitimacy on abuse of authority entailing obviously antisocial consequences by reference to community goals (e.g. the interests of the ‘majority of residents’ or the electorate). At the same time the investigating authorities will not find themselves in a situation where the production of evidence is well-nigh impossible.
In view of the above, we proposed that the basic case of the abuse of authority should include result (disadvantage suffered by the aggrieved party) and at the same time it should drop the aim (design) specified in Article 225 of the Criminal Code and it should be ‘content’ with the mere intent. We also proposed that the codification committee should consider that if the aim (design) of causing unlawful disadvantage or of gaining unlawful advantage, if the result is the same as in the basic case, then a qualified (aggravated) case of the criminal offence should be established.
(Another possible solution is the supplementation of the description of the offence category with a separate interpreting provision specifying the concept of causing unlawful disadvantage for the purposes of this Article.)
The text proposed by the ombudsman’s office is as follows:
“Abuse of authority
(1) An official who breaches his official duty, exceeds his scope of power or otherwise misuses his official position and thereby causes unlawful disadvantage, shall be deemed as having caused what is called ‘petty crime’ and may be sentenced to up to one year detention, public work or may be fined.
(2) The official committing the act as per paragraph (1) above in order to cause unlawful disadvantage or to gain unlawful advantage shall be deemed as having committed a criminal office and shall be sentenced to up to three years of detention.”
Our proposals - along with detailed reasons - have been submitted to the chairman of the technical committee set up within the Ministry of Justice to draft the punitive regulations who has promised to take them into account in the discussions on the amendment to the Criminal Code.
VI.
‘Typical cases’ of discrimination, social and ethnic roots of the problems
1.
Introductory considerations
In the following paragraphs we shall report on certain possible special cases of discrimination, primarily based on some of the complaints submitted to the parliamentary commissioner for the rights of minorities.
Without following an order of importance but taking into account the numerical proportions of the subjects of the submissions, we shall describe cases pertaining to housing problems, the constitutional right to social safety as well as complaints relating to employment.
A common feature of the problems originating from the various areas of social life is that they can be explained partly by the impacts of prejudice, and that discriminative behaviour on the part of the state, local governments or just simply the majority of society may be found as an underlying motive.
The largest domestic ethnic minority - the Roma community - is facing substantial disadvantages both in terms of housing and employment, consequently, the proportion of Roma individuals relying on regular or one-off social aids and various types of subsidies is rather high almost across the whole of the territory of Hungary. It is now regarded as commonplace that the domestic Roma minority has been the real loser of the system change but it is true that over the past decade the financial/social status of this group of society has sunk very low and the only hope is that this trend may be at stopped sooner or later. Enabling them to catch up with the rest of the society, however, may take decades.
It is well known from the media that on 7 November 2000 the Constitution Court - based on a joint proposal submitted by the parliamentary commissioner in charge of citizens’ rights and the parliamentary commissioner for the rights of minorities - issued an interpretation of the right to social safety as per Article 70/E of the Constitution and declared, as a general principle, that the ‘right to housing’ cannot derived from the said provision of the Constitution as a basic constitutional right.
In its resolution No. 42/2000. (XI. 8.) AB the Constitution Court - whilst consistently maintaining the reasoning outlined in its earlier decisions - assessed the contents of the right to social safety in concert with the realisation of the right to human dignity. The Constitution Court pointed out in 1998 already that the constitutional requirement is that the minimal level of social benefits should enable the exercising of the right to human dignity.
Of course it is not our objective and it cannot even be our task to subject the decisions and resolutions of the Constitution Court to criticism however, some of the elements of the reasons attached to the resolution should be mentioned here.
We agree with the position expressed by the Constitution Court in that ‘no constitutional fundamental right concerning the provision of concrete benefits arises from Article 70/E of the Constitution, however, based on its general obligation to provide for its citizens, the state should make efforts to as fully realise social safety as possible’. We have to unconditionally agree also with the argument that the ‘second generation’ fundamental right to social safety cannot be interpreted in itself, only in relation with the content elements of the right to human dignity.
However, we cannot fully identify with the view assessing the realisation of the right to human dignity from a - fully justified and important but - rather narrow perspective. For the obligation of the state to provide for its citizens on account of a threat directly endangering human life originates primarily from the first half of the provision comprised in Article 54(1) of the Constitution, stating that ‘in the Republic of Hungary every person has a born right to life’. Any potential restriction of the right to human dignity is only of a secondary importance relative to the right to life and reference to this seems rather weightless in comparison with the mandatory state care obligation existing in a direct form in order to protect human life.
We do not doubt that the right to life is closely related to the right to human dignity, indeed, the enforcement of the right to life may even be a pre-requisite for the exercising of the right to human dignity, however, one cannot bypass the question of what kind of human dignity may a person have if he or she has lost his home for some reason and in the course of his or her day-to-day life, in satisfying his or her basic needs, he or she cannot avoid exposure to the public, living in a situation where he or she has actually no ‘private life’ of any kind.
There is no doubt about the fact - in which respect the fact-finding statement issued by the Constitution Court unquestionably true - that the actions of state and local government aimed to ensure social safety, will always depend on the performance of the economy. This is one of the reasons why we wish to draw attention to the positive ‘message’ comprised in the resolution of the Constitution Court, according to which ‘based on its general obligation to provide for its citizens, the state should make efforts to as fully realise social safety as possible’ since this would be in line with its obligation undertaken in the International Protocol on Economic, Social and Cultural Rights promulgated by Law-decree No. 9 of 1976, whose Article 11 (1) stipulates that ‘The signatories of the Protocol recognise everyone’s right to his/her own and his/her family’s proper living standards, including access to food, clothing and housing, including permanent improvement of their living standards’.
The implementation of Hungary’s international legal commitment and the enforcement of the provisions declared in Article 170, Article 67. (1), and Article 70/D. (1) may only be accomplished by ‘permanent and active efforts on the part of the state aimed to create the various requisites of existence’. The decision issued by the Constitution Court does not at all state that the legislator is exempted from all responsibilities or that the responsibility of the state exists only in the case of direct threat to life - to the extent of eliminating such threat.
For the provision for the exercising of rights to a healthy life, to the raising of children in families, may take place only partially without an appropriate dwelling (and not only a place to sleep) and the reference to inefficient economic performance may also only be used as a temporary excuse, however, in this aspect the state bears a definite responsibility, for the promotion of sustained economic growth is ultimately part of the competency of the state, along with the making of decisions that may improve the situation in terms of housing.
Local governments bear special responsibility with respect to dwelling possibilities and the problems of ‘homelessness’. Later in this paper we shall discuss in detail some of the cases and our findings and statements relating to ‘squatters’ in a separate chapter, however, we should like to draw attention to some legal and factual circumstances that are highly important from the aspect of the theme.
It is well known that squatting as a definitely illicit form of behaviour, is experienced - in respect of its frequency and possibility of occurrence - almost exclusively in the case of so called council flats (dwellings owned by local governments, utilised in the form of rented flats). (In principle, it is not impossible that squatters occupy a dwelling owned but temporarily not supervised by a private individual, however, we have no information of such cases.)
Accordingly, the occurrence of arbitrary occupation of dwellings - as a phenomenon - may be witnessed in municipalities where there actually are unused council flats and where the fact of squatting may remain undetected for a relatively longer period of time. Consequently, squatting is a problem typically faced by larger towns.
Let us take a look at the legislative background of the situation that has evolved in the wake of squatting. The squatter definitely violates the right of the owner, for by his or her behaviour the squatter takes possession of a council-owned flat, using it as his or her own, violating the provisions of the Civil Code protecting private ownership as well as the provisions comprised in Article 12(2) and Article 13(1) of the Constitution.
The local governmental system established by the act on local governments (Ötv.) has been created in order to enable local communities to exercise their right to self-governance.
Pursuant to Article 1 of the act on local governments a local government proceeds in autonomy with respect to local public issues - including, especially, the provision of public services for residents, the local exercising of the public power and the creation of the organisational, personal and material requisites for these.
Pursuant to Article 8 of the Ötv. ‘in terms of local public services the duties of a local government shall include, in particular: municipal development ..., the protection of the man-made and the natural environment, management of housing resources ..., provision for health and social/welfare services and benefits, provision for the performance of tasks relating to children ad young people ..., promotion of ... a healthy mode of life’.
Act No. III of 1993 on social governance and social services specifies even more concrete tasks for municipal governments when stipulating the following: ‘irrespective of its scope of power and competency, ... shall provide aid, meals and boarding for those in need if the lack of such threatens the life or bodily integrity of the person in need’.
A municipal government has a high degree of autonomy - and, of course, it bears it own responsibility - in deciding on the mode and extent of the performance of the tasks listed based on Article 8(2) of the local governmental act, depending on the needs of the residents and on its financial resources.
The rights of local governments are right provided for residents of municipalities holding voting powers (the electors) who exercise the collective right to self-governance primarily through their elected representatives. Pursuant to Article 9 of the local governmental act the local government comprised of elected representatives is a legal entity. Accordingly the council performs and exercises the local governmental duties and rights based on the mandate granted by the community of electors, to ensure the administration of local public affairs.
Based on the analysis of the above statutes it is clear that a municipal government - as the community of the local governmental representatives bears responsibility for its decisions and actions (is accountable) towards a larger community - the members of the community holding voting rights.
In our view this responsibility is especially valid where the council, the local government exercises its ownership rights (ultimately the ownership rights of the community of electors), especially where decisions made by the council have substantial consequences that are also regarded as the foundations for the obligation of the municipal government to provide for its residents.
When a council initiates the eviction of squatters from some local governmental apartment in exercising its ownership rights, it proceeds lawfully, for it is aiming to restore the lawful conditions of ownership. Its decision, however, is not necessarily expedient and reasonable, for it may result in driving families to the streets and may make individuals homeless. A local government bears special obligations concerning the homeless as well as children whose performance will impose larger burdens - even in financial terms - on the community than the ‘taking back’ real estate that are otherwise out of use or that could not even be used for purposes of rental dwelling.
For it has been found that in many cases squatters use council flats or other rooms not qualifying as dwellings, for temporary homes, whose existence has been simply ignored by the local government or its organ in charge of the management of its property.
(We shall describe a case where the squatter - and his family - had been living in the flat that they took possession of - no doubt - without the right to do so, for almost a decade, during which they effected substantial investments to improve the property, to make it more suitable for use as a dwelling, and the local government did not take this into account when initiating their eviction. In cases where a local government has practically forgotten about the existence of a real estate the enforcement of the right of ownership in retrospect and with such determination, seems somewhat unfair and unjust.)
After this short introduction let us describe our experience relating to the housing area and then some of the cases relating to social problems and employment opportunities.
2.
Description of housing complaints
It is fairly safe to state that unresolved housing problems constitute the one of the most burning sets of problems of today’s Hungarian society, having a fundamental bearing on the possibilities and perspectives in life of the current and future generations. No spectacular quantitative or qualitative improvement has taken place in the housing stock over the recent decades and there is no hope at present for even a partly satisfactory resolution for the housing problem.
The accelerated privatisation of the housing stock in the early nineties opened a new chapter in the history of housing shortage, when local governments - taking the opportunities offered by the statutory regulations - sold large numbers of their real estates. Consequently, in Hungary - in a way almost unprecedented in Europe - the majority of permanent residents are ‘owner-occupants’. The substantially reduced housing stock of local governments made it practically impossible to maintain the system of allocation of flats and of queuing up for such allocations, that had been accustomed to by the society and that had been operating more or less efficiently.
By that time it became clear that local governments had to introduce a new system of ‘economising’, realising that in the short and medium run they could in no way expect any increase of the available stock of rental flats. They are now forced to manage the available stock of flats, and make arrangements to ‘allocate’ the small number of rental flats - some of which become vacant from time to time - in a socially equitable way. The wholesale privatisation of apartments involved first those units that were in the best condition, later on it was extended to flats in average state of repair, finally, the stock of housing in local governmental ownership was comprised of lower standard apartments with limited or no conveniences.
By that time a number of social groups - who used to have some chances in the former system of allocation of flats - found themselves in a hopeless situation where they saw no real chance for a home within a reasonable period of time. These groups were the source of the increasing number of squatters. The problem was becoming increasingly difficult for the authorities to control and manage.
No wonder that during the over five year history of the operation of the institution of the ombudsman in charge of issues pertaining to minorities an increasing number of complaints were filed - almost exclusively by members of the Roma community - against actions taken by local governments in the area of housing. By way of an introduction let us quote an example that includes questions to be answered with respect to each of the key parts of this set of problems.
The head of the Roma minority self-government of a large town in Transdanubia turned to the ombudsman in charge of issues pertaining to minorities for assistance against the eviction of four Roma families from a residential district - that was recognised as one of the poorest districts in town. It became clear from the documents attached to the submission that the local government - in compliance with the relevant statutes - asked the court to impose an obligation on the squatters to leave the apartments and asked for enforcement of this decision by court, after an - unsuccessful - official call on the families to leave the apartments. In view of these - in accordance with the restricting provision of the Obtv. according to which the parliamentary commissioner is not entitled to assess the activities of courts of law - we had to reject the complaint.
The complainant asked the ombudsman in charge of issues pertaining to minorities to review the operation of the local government in any case, with special regard to the fact that the squatters had been living in the real estates without any problem for quite some time and they regularly settled all costs relating to the use of those apartments.
In accordance with the request - expressing our own constitutional concerns - we repeatedly turned to the mayor of the municipality, asking him to suspend the enforcement of the verdict but our initiative was rejected.
We learned from the mayor that it was no longer possible - in retrospect - to establish the circumstances or the date of the squatters’ moving into the apartments. By way of explanation, they mentioned the workload borne by the local governmental office and the complexity of the tasks relating to the privatisation of the housing stock. Nevertheless, the duration while the local government did not proceed with the due care to protect its own property, seemed rather long. Events accelerated when the local government - in exercise of the rights granted by law - retained a business organisation to perform all of the tasks relating to the management and maintenance of the apartments, including, of course, the collection of rent in arrears and - which is more important from our perspective - the eviction of squatters. The business organisation which had a financial interest in the resolving of problems of ownership proceeded to protect the interests of the owner rather intensively, however, as was established by our investigation, this procedure was not contrary to any legal regulation.
Since we could not establish any concrete violation of any basic constitutional right, we had to close our inspection - maintaining our conceptual constitutional concerns.
One of the most thought-provoking aspect of the case was that a very long time - about 8 years - had passed between the time of the squatters’ moving in the apartments and the action taken by the authority. During this period of time - as has been mentioned - the majority of the squatters were paying the established fee for the use of the apartments, settled their public utility bills and - most peculiarly - some of them got registered as permanent residents of the apartments. These facts gave rise - and not quite without any reason - to the impression of the individuals who were not versed in questions of law that they had legalised their situation.
In the form of a recommendation by the social/welfare council a position was formulated according to which definitely unlawful cases of squatting should be subject to differentiated treatment, the key aspect of which could be the gravity of the actionable behaviour of the persons concerned, taking into account any objective circumstances forcing them to behave the way they do. Of course, it should also be taken into account whether the perpetrators are families with children along with the length of time they have spent in the real estate they occupied without permit.
The increasing number of complaints necessitated our own inspection, before the description of which we shall offer a brief review of the relevant legal regulations.
3.
Other issues relating to social safety
Article 70/E of the Constitution specifies the right of citizens to social safety: ‘Citizens of the Republic of Hungary are entitled to social safety: in the case of old age, ill health, disability, loss of spouse, orphanage, unemployment for reasons beyond their control, they shall be entitled to benefits as required for their livelihood’.
In the established system of service provision the right to social safety is provided for in the form of the benefits allocated by the state as benefits based on basic citizens’ rights, guaranteeing the - usually ‘sufficient’ - levels of services. This type of service provision is supplemented by the forms of aids that are limited by the resources of local governments. Local governments, however, establish the forms and frequencies of benefits along with the group of people entitled to such services in their social decrees in vain, if their financial resources are not enough for the satisfaction of all demands.
This is the explanation for the large number of complaints relating to rejections of applications for social benefits. In such submissions members of the Roma minority complain about the impossibility of their financial situation particularly in small villages and provincial small towns, the lack of jobs and the insufficiency of the local governmental subsidies that are not enough for sustenance.
In the course of the investigations it is rarely possible to establish discrimination on ethnic ground or violation of rights suffered by the complainants, however, it is clear that the small amounts of the aids allocated and the subsidies received once or twice a year do not help much where the total income of a family originates from the social benefits allocated based on fundamental citizens’ rights.
The procedure applied by the local government was found to be violating the law where a submission complaining about the rejection of aid applications signed by several residents of a rural municipality was received by the parliamentary commissioner.
The investigation established that the local government rejected applications submitted in January and February based on the argument that they had no accepted budget yet. They did not deal with the satisfaction of the applications even later - after the approval of the budget.
The procedure by the local government was contrary to the right to social safety as specified in Article 70 of the Constitution and it was also contrary to the provisions comprised in Article 8 of the Ötv., therefore we requested that they perform an ex-post review of the applications rejected on account of the lack of a budget and that the local government makes a decision on the merits of the case.
The local government rejected our request for the extraordinary difficult situation in life that would have necessitated the ‘interim aid’ at the beginning of the year was no longer observed, therefore, the earlier rejection could not be remedied by the allocation of another aid. But they promised that they would not reject aid applications in the future without making substantive decisions.
In another case the complainant complained that in his difficult financial position he could not expect assistance from the local government and although he was 50 percent disabled, his wife needed permanent medical treatment, his aid applications were regularly rejected.
The investigation found that the decree of the local government on social services was non-compliant in stating that ‘no interim aid may be granted to a person who receives home maintenance subsidy, nursing fee, regular social aid, regular education aid or meal cost contribution established by the local government or holds a public health service card made out on the basis of equitable considerations. Later on the group of individuals excluded from aids by adding that ‘no interim aid may be granted either to recipients of annuity for the aged or regular child protection subsidy’.
The practices pursued by the local government in allocating aid resulted in a situation where aid in extraordinary situations in life was not available for the families most in need, those facing the most hopeless financial difficulties. The forms of social/welfare services and benefits are regulated by Act No. III of 1993 on social administration and social services (hereinafter: Szoc. tv.) which stipulates in Article 45 (4) that ‘the council of a local government shall provide interim aid to individuals in extraordinary situations in life threatening sustenance and to those facing problems of sustenance temporarily or on a permanent basis, as specified in its decree’.
The goal of the act is to create social safety. To this end the law specifies the forms and organisation of the social services to be provided by the state, the conditions of entitlement and the guarantees for the exercising of such entitlements. At the same time, the act authorises local governments to establish additional forms of benefits as listed in the law. A local government, however, may establish and disburse benefits only within the range specified by the law. They are not permitted, however, to narrow the range of those entitled to aids and cannot exclude individuals (groups) from the aids whose assistance is prescribed by the Szoc.tv. on a mandatory basis.
In the specific case in point we established that the decree issued by the local government was contrary to the Szoc.tv. and it violates the right to social safety as specified in Article 70/E of the Constitution, therefore, it results in leaving families without social aid when they would be particularly in need of it in an especially difficult situation in life. In order to remedy the situation we submitted a recommendation to the head of the public administration office asking that the office should proceed based on its power granted by Article 99 (1) and (2) of the Ötv. and call on the council of the municipality to modify its decree on social benefits and to abrogate the provision violating the law.
Our recommendation was accepted and the decree was amended.
A smaller proportion of complainants submitting complaints on account of deficiencies - insufficiency - of social benefits turn to the parliamentary commissioner in charge of minority issues to ask for supplementation of their monthly incomes or to ask for financial support - to be granted by the ombudsman - for the accomplishment of some concrete objective. Such applications - that are indicative of lack of information - are forwarded, whilst informing the complainants, to the municipal governments concerned and, if necessary, we specifically draw the attention of the mayor to the consequences of not providing the requested aid.
This was the case with a Roma child who lived in a small village in Szabolcs-Szatmár-Bereg county, attending vocational school, but on account of the low income of the family, the lone mother could not pay the commuting costs and she feared that he would have to give up his studies.
The investigation established that the local government did provide the aids payable based on basic citizens’ right for the family but they could not afford to pay the costs of the regular travels of the young man. As a result of our request the council changed its position and we were informed that they would pay the boy’s students’ season ticket for the school term.
Some of the complainants ask assistance for a state housing aid to resolve their long standing housing problem. In the majority of those turning to our office the problem is that they do not have the ‘own equity’ prescribed on a mandatory basis by the decree No. 106/1988. (XII. 26.) MT and they would like the local government to provide them with non-interest bearing loans of hundreds of thousands of HUF. Budgets of local governments do not enable councils to do so and the regulations of the law are tight: one has to have 35% of the costs of the construction in order to be entitled to the aid payable on children and sustained family members.
We cannot provide assistance in these cases for it cannot be blamed on a local government if a credit institution does not extend a loan for lack of the applicant’s ‘own equity’. We can only inform those turning to us in such cases, irrespective of the fact that we consider the lending practices of credit institutions problematic and discriminatory from a variety of aspects.
A number of submissions were received by the office last year in which complainants complained against the payment of the regular child protection aid in the form of shopping tickets.
This form of subsidy is granted to anyone under the basic citizens’ rights whose family and financial circumstances meet the criteria specified in the Gyertv., in whose family the per capita income is not in excess of the smallest amount of the old age pension, being raised in the family is not contrary to the interests of the child [Article 19 (2)]. The amount of the subsidy - per child - cannot be smaller than 20 percent of the smallest amount of the old age pension [Article 20 (2)].
According to Article 28 of the Act, based on the decision of the local council the child protection aid may be provided in the form of an in-kind benefit, particularly to children under protection. Subsidising of the purchasing of text book and teaching aid purchases of children attending primary school, discounts off charges for institutional meals for children, the payment of the tuition fees, the assumption of the fee for health services and for other services are the main forms of in-kind benefits.
Some local governments interpret this possibility as though they could pay the aid in the form of shopping tickets for foodstuffs that may be used for payment in certain shops - those specified by the council of the local government. This is regarded as an improper practice for this is not enabled by the statutory authorisation, particularly if payment in cash is practically fully replaced by vouchers.
In a municipality in Szabolcs-Szatmár-Bereg county the local government provided all child protection aids in the form of shopping tickets, to be used for purchases in the grocery store operated by the local government. The claimants complained about the high prices charged by the shop and about their having to spend the whole amount of the aid on food whereas they had other things to buy with the aid money for their children.
The investigation established that the procedure followed by the local government violated the right to social safety as specified in Article 70/E of the Constitution when it arbitrarily transformed the form of the aid payable to recipients under basic citizens’ rights.
We initiated the alteration of the non-compliant practice, however, the council only partly satisfied our request, saying that some of the families spend cash on alcohol and tobacco, instead of food for their children. They would continue to give only tickets to such families, but they cut the high margin of the grocery school and they would sell products at a discount.
No additional complaint has been received from the same community on the same issue ever since our intervention.
A Roma interest representing organisation submitted a complaint to the parliamentary commissioner for at a municipality in Szabolcs-Szatmár-Bereg county the parents of children attending the local kindergarten or the school do not receive the child protection aid - neither in cash, nor in-kind. These amounts are transferred to the institutions to settle meal charges. This practice is applied even if the child does not go to kindergarten but a place has been provided for her or for him and there is no reason for the parents not to take the child to the kindergarten.
The investigation established the following:
Based on a resolution passed by the council the regular child protection aid - HUF 3,320 in 2000 - was paid to children of kindergarten or primary school age, in the in-kind form of the meal charge. The cost of meals at kindergarten and school was HUF 320. The difference was paid by the local government from its budget. Consequently, at the municipality, every child between the age of 3 and 14 received regular daytime meals, without costing anything to the parents. If a child was absent for any reason - being ill or otherwise - the parents were allowed to take the meals home, even over longer periods of time.
This practice was applied to ensure that each child eats two meals (three in kindergarten) as required for their age, including hot meal once every day. (For it is generally observed that - primarily in the Roma community - children do not always have proper meals at home and if they were not supplied in institutions, many of them would not have access to proper nourishment. Because earlier for a while this practice was abandoned on request by some parents, but then they found that the majority of children went to school without a breakfast and without a mid-morning sandwich, and first they took the ‘elevenses’ of others, later - when parents stopped sending food with their children - took their money and other valuables. This could not go on for long, so on request by the minority self-government they reintroduced the earlier practice which is accepted by the majority of the residents of the municipality.)
The inspection did not establish that the procedure applied by the local government would be contrary to the effective regulations or that it would have a negative impact on those entitled to the aid. It is only an unusual practice and we have not met similar approaches applied by other local governments, probably because it takes substantial financial contribution by the local government applying such practice which not many local governments are ready to undertake.
4.
Prejudice in the labour market
During the system change over a million jobs were closed in Hungary as a result of which the structure of the labour market was fundamentally transformed. Many Roma employees used to work in sectors - e.g. construction, metallurgy - where the transformation to the market economy entailed dramatic staff cuts. The factors reducing chances of employment - lower levels of schooling and vocational education as well as residence in locations where jobs are scarce - were observed in higher proportions among the Roma employees, therefore, they were among the first ones to loose their jobs and most of them have still not managed to return to long term employment. Unemployment in the Roma communities is estimated to be six or seven times higher than the national average. Results of social surveys and complaints submitted to our office also show that besides the above mentioned reasons this is partly a result of negative discrimination against Roma applicants by certain employers.
During the period of the preparation of this report the office received only complaints against decisions taken by employers operating in various forms of business organisations. Since such employers do not qualify as authority from the aspect of the application of the Obtv., we could not conduct inspections for lack of competency. In these cases we could only provide information on the legal tools available for employees who have suffered from negative discrimination and we also provided information on offices providing right protection services free of charge.
On complainant wrote that based on a job advertisement in a paper she applied for a chambermaid job in a hotel. She met all of the criteria of employment, although she had never had a job of this type. Nevertheless, she assumed that this disadvantage would be balanced by her qualification and experience as a nurse. She called on the employer after making an appointment by telephone. The receptionist did not even take her to the personnel manager at the hotel, only announced her arrival. Then she heard through the door someone saying ‘I hate gypsies. I will not have them in here’. Thereafter, - without checking her for suitability - she was told she did not get the job, without giving any reason.
The attention of the complainant was drawn to the legal possibility that since 1 January not only civil action may be initiated against unlawful refusal of employment34. Since 1 January 1999 it is also possible to start an action under the Labour Code. She was also informed that in such an action it would not be her task to prove the fact of negative discrimination, rather, the employer would have to prove his decision and prove that he was not discriminative. The reversal of the burden of proof is such a special rule that is aimed to balance the less advantageous position of the employer in an action, during the court proceeding. The labour court cannot oblige the discriminating employer to employ the aggrieved party, but a compensation may be awarded in such a case. The obligation to pay a compensation entails not only a reparative, but also a repressive legal consequence.
We also informed the complainant that she may ask for the conducting of an investigation concerning the prohibition of negative discrimination, by the labour supervision. In the course of this procedure - as a result of the amendment to the act proposed by the parliamentary commissioner for the rights of minorities - the employer has to prove that he had not break the rule prohibiting negative discrimination.
The complainant chose this latter approach. The labour supervisor making the decision of the first instance found only indirect proof of the complainant’s having applied for the job in response to the advertisement. Since the employer denied this, the labour supervisor terminated the proceedings for lack of proof.
The complainant lodged an appeal against this decision. In order to promote the success of the proceedings we acquired the list of calls from the Hungarian telecommunication company (MATÁV) proving that the complainant conducted a telephone conversation with the employer on the day following the disclosure of the job advertisement.
The National Labour Safety and Labour Supervision stated that the authority of the first instance brought a lawful decision from the aspect of the procedural rules, however, it was wrong to base its decision on the lack of evidence. Pursuant to Article 1 of Act No. LXXV of 1996 on labour investigations (hereinafter Met.) the scope of labour investigation covers legal and natural persons and economic organisations not qualifying as legal persons who (that) employ natural persons over 18 years of age under legal relationship relating to work. The complainant had not yet established an employment relationship with the employer, therefore, the procedure is outside the remit of the labour supervision.
(Since the labour supervision did not proceed with respect to the case of negative discrimination, the Office for the Protection of the Rights of National and Ethnic Minorities started a labour action, representing the complainant, against the employer.)
In our view under the effective statutes of law the labour supervision authorities do have the competition to act against negative discrimination observed in the course of the establishment of employment relationships. Pursuant to Article 3(1) d) of the Met. a labour inspection covers: ‘compliance with the prohibition of negative discrimination’. The Met. does not define the concept of negative discrimination, thus the provision comprised in Article 5 of the Labour Code has to be taken into account. This is supported by the fact that according to the text of the Met. in effect before 31 December 1999 labour inspection extended to ‘compliance with the prohibition of negative discrimination as specified in Article 5(1) of the Labour Code’. According to the reasons attached to the Labour Code this prohibition is ‘applicable in the case of the establishment of employment relationship, during the term of employment to the specification of rights and obligations, in the enforcement of responsibility and in the termination of employment’.
By comparing the above provisions it is clear that reports submitted on account of discriminative refusal to establish employment relationship have to be investigated by the labour supervision. From this aspect it is immaterial whether an already established employment relationship is a pre-requisite for other investigations or procedures of the labour supervision.
This interpretation is confirmed by the fact that although a labour action can also be started in the case of an already existing employment relationship, a claim concerning violation of the prohibition of negative discrimination is an exemption to this rule.
The president of the National Labour Supervision did not accept our argument. He maintained his position that the existence of an employment relationship is an indispensable pre-requisite for the conducting of a labour investigation.
The practice that labour supervisions will not carry out an inspection in the case of unlawful refusal to employ applicants is not considered acceptable, for the majority of our complainants are not in the position to retain a legal representative and seek remedy in court.
In our view in such cases remedy could be provided to the violation in the simplest way if the employee who suffered negative discrimination in the course of the establishment of employment relationship, could make a report to the labour supervision - instead of the starting of a labour action that necessitates his or her active participation - asking for a labour investigation. The benefit of this procedure would be that the employer would then be confronted - not by the aggrieved party - but by the employees of the labour supervision who do have the necessary expertise in legal issues. It should be noted that our above mentioned proposal concerning the reversal of the burden of proof was formulated just in order to promote success of such procedures.
In respect of the procedural practices of the labour supervisions we intend to conduct negotiations with the Ministry of Social and Family Affairs, the organisation in charge within the government of the preparation of the statutes concerning labour inspections. Since this problem may be eliminated only by legislation, the subjective scope of the Met has been proposed to be extended to the unlawful denial to establish labour relationship.
VII.
Assessment of the responsibility
assumed by the state, the directions of development
Alternative possibilities for supporting national minority self-governments
At present both national and local minority self-governments are funded, for the most part, by central budgetary subsidies. In our earlier reports we already mentioned that we do not consider the established system of subsidising local minority self-governments, where the limit amount specified by the budget act is allocated in equal proportions among municipal governments - irrespective of municipality size, the number of individuals making up the minority communities and the actually implemented national or ethnic minority programmes - as a suitable and just solution. (This mode of financing may be criticised for a minority self-government established in a municipality of a few hundred residents receives the same amount of subsidy as does a similar self-government of a town of tens of thousands of residents.) Minority organisations performing national or ethnic minority related tasks (most of them are associations) may request subsidy for the performance of their tasks of the Parliament’s committee in charge of human rights, minority and religious issues or may also win - through tenders - funds from the Public Foundation for National and Ethnic Minorities.
In addition to the above possibilities, the social organisations of the domestic Roma minority may submit tenders (applications) to the Public Foundation for the Hungarian Roma Community.
This is not the first time that we state with respect to public foundations that the budgetary funds that may be accessed through them are usually not satisfactory, in addition, the tendering scheme - including reviews - involves lengthy and bureaucratic procedures and the costs of the operations of public foundations are also substantial.
It is proven by examples from practice that the national self-governments of minorities also have to undertake some roles in order to ensure the performance of some duties - not necessarily only in the area of education and culture. In general, however, it may be pointed out that these organs have no or only little resources in terms of intervention funds that would enable them to provide efficient assistance - based, of course, on the nature and ranking of tasks to be performed.
Some national minority self-governments that do have other funds in addition to the money originating from the central budget (e.g. in the form of donations from abroad), are in a better position than others.
In Hungary the state has given up part of its tax revenues constituting its key budgetary revenue source. taxpayers may offer twice one percent of their income tax to churches or non-profit organisations.
Act No. CLVI of 1997 on public service organisations (Kht.) specifies the key rules on the subsidising of non-governmental and non-profit oriented organisations in order to ‘preserve their domestic traditions, increase their social roles, improve the transparency of their public service activities and financial management, to promote their activities in the area of the provision of public services’. Pursuant to Article 26 c) of the Kht. the concept of public service activities includes for instance the protection of human rights and the rights of citizens as well as activities relating to national and ethnic minorities living in Hungary and Hungarians living outside the borders of the Republic of Hungary.
Act No. CXXVI of 1996 on the utilisation of part of the personal income tax in accordance with the instruction of the taxpayer (Szjft.) defines the group of beneficiaries for whom private individuals covered by the provisions of Act No. CXVII of 1995 on the personal income tax may offer one percent of their personal income tax and the conditions that have to be met for doing so.
Pursuant to Article 4 of the Szjft. a beneficiary may be a social organisation - with the exception of political parties and employers’ and employees’ interest representing organisations - or foundation or public foundation as specified by the provisions of Act No. II of 1989 on the right of association (Etv.), if they meet any of the conditions specified in Article 26 of the Kht., i.e. if their activities qualify as public service activities.
National minority self-governments - particularly in view of the declarations comprised in the preamble to the Nektv 35 - are organisations dealing with issues pertaining to national and ethnic minorities in Hungary, they operate their head offices in Hungary and perform their activities - on a not-for-profit basis - in order to satisfy the mutual interests of society and state.
At the same time, the national minority self-governments clearly do not fall under the scope of the act on association and they cannot be regarded as foundations or public foundations.
In view of the above tasks, however, the provision comprised in Article 4 of the Szfjt should be amended to enable taxpayer citizens with preferences to minorities to offer 1 percent of their personal income tax for national minority self-governments which perform activities that definitely are in the interests of the public. This arrangement would not reduce the revenues of the state but it would provide a wider choice for citizens.
Social organisations performing duties relating to national and ethnic minorities - if they do meet the conditions specified in the Szjft - may already be recipients of the tax donation. Acceptance of national minority self-governments as beneficiaries would result in the supplementing of the ‘intervention funds’ of such organisations in addition to the existing central budgetary subsidy and it could be guaranteed that the subsidy is actually spent on performing duties pertaining to national and ethnic minorities.
Budapest, March 2001
Dr. Jenõ Kaltenbach
VIII.
I. Statistics on the operations of the
ombudsman in charge of issues pertaining to minorities
I. Breakdown of documents generated in year 2000, by submitter
|
Individual submissions |
245 |
|
Minority self-government, civil organisation, community |
110 |
|
Central state organs |
34 |
|
Municipal governments |
10 |
|
Ex officio investigation |
20 |
|
Other |
12 |
|
Total |
431 |
II. Proceedings launched based on documents generated in year 2000
|
Start of investigation based on submission |
332 |
|
Ex officio investigation |
20 |
|
Information |
36 |
|
Position statement |
40 |
|
Other |
3 |
|
Total |
431 |
III. Minorities involved in the cases
|
Roma |
291 |
|
Bulgarian |
1 |
|
Greek |
1 |
|
Croatian |
5 |
|
Polish |
3 |
|
German |
45 |
|
Armenian |
4 |
|
Romanian |
|
|
Ruthene |
3 |
|
Serbian |
1 |
|
Slovak |
11 |
|
Slovene |
|
|
Ukrainian |
1 |
|
Complainant not falling under the scope of the Nekt. |
39 |
|
Case involving several or all minorities |
26 |
|
Total |
431 |
IV. Breakdown of cases in territorial breakdown (by county)
|
Baranya |
12 |
|
Bács-Kiskun |
22 |
|
Békés |
14 |
|
Borsod-Abaúj-Zemplén |
41 |
|
Csongrád |
12 |
|
Fejér |
5 |
|
Gyõr-Moson-Sopron |
4 |
|
Heves |
15 |
|
Hajdú-Bihar |
16 |
|
Komárom-Esztergom |
9 |
|
Nógrád |
3 |
|
Pest |
30 |
|
Somogy |
6 |
|
Szabolcs-Szatmár-Bereg |
18 |
|
Jász-Nagykun-Szolnok |
15 |
|
Tolna |
11 |
|
Vas |
4 |
|
Veszprém |
11 |
|
Zala |
9 |
|
Budapest |
170 |
|
Complaints without territorial characteristics |
4 |
|
Total |
431 |
V. Organs involved in the cases
|
Tax and Financial Control Administration |
6 |
|
State Audit Office |
1 |
|
Power, water distributors |
2 |
|
Courts |
22 |
|
Penitentiary institutions |
12 |
|
Health care institution |
1 |
|
Minority self-governments |
8 |
|
Media |
4 |
|
Ministries |
4 |
|
Education institutions |
15 |
|
Parliament |
1 |
|
Financial institution |
5 |
|
Law enforcement organs |
35 |
|
Social Security self-government, pension disbursement institution |
4 |
|
Municipal governments |
126 |
|
Prosecutor’s offices |
4 |
|
Businesses |
8 |
|
Other* |
178 |
|
Total** |
436 |
|
|
|
|
*These cases include information materials received by our office, complaints against private individuals and issues transferred to other commissioners for lack of competency. |
|
|
** More than one organ may be involved in a case. |
|
VI. Total number of recommendations and requests (initiatives)
|
Initiative |
31 |
|
Recommendation |
6 |
|
Proposal concerning legislation |
9 |
|
Total |
46 |
|
Of which |
|
|
accepted initiative |
23 |
|
accepted recommendation |
5 |
|
accepted proposal concerning legislation |
8 |
VII. Organisations involved in initiatives and proposals
|
Municipal government |
30 |
|
Ministry of Education |
4 |
|
Ministry of the Interior |
2 |
|
Ministry of Justice |
2 |
|
Public administration office |
6 |
|
Tax and Financial Control Administration |
2 |
|
Total |
46 |
VIII. Actions taken based on investigations *
|
Information |
120 |
|
Position statement |
64 |
|
Mediation |
7 |
|
Transfer |
39 |
|
Rejected without investigation, for lack of competency |
45 |
|
Rejected after investigation |
35 |
|
Asking other organ to investigate |
16 |
|
Recommendation, initiative, proposal for legislation |
45 |
|
Other |
27 |
|
In progress |
61 |
|
Total |
459 |
* More than one action taken with respect to a case.
IX. Constitutional and minority rights inspected in the course of our proceedings
|
Designation of statute |
Article(paragraph) Number of cases |
relating to statute |
|
Act No. XX of 1949 (Constitution) |
||
|
Prohibition of discrimination |
70/A. § (1) |
36 |
|
Right to highest level bodily and mental health |
70/D. § (1) |
2 |
|
Right to social safety |
70/E. § (1) |
26 |
|
Right to security in law in state governed by rule of law |
2. § |
1 |
|
Right to ownership/property |
13. § |
2 |
|
Right of youth to security of existence, education |
16. § |
1 |
|
Right to healthy environment |
18. § |
3 |
|
Right to public safety |
35. § i) |
3 |
|
Right to administration of local community affairs |
42. § |
2 |
|
Right to life, human dignity |
54. § (1) |
27 |
|
Prohibition of inhuman, demeaning treatment |
54. § (2) |
2 |
|
Right of victim of unlawful detention to compensation |
55. § (3) |
6 |
|
Right to legal remedy |
57. § (1) |
17 |
|
Freedom of choice of place of residence |
58. § (1) |
1 |
|
Right to good renown, inviolability of private dwelling |
59. § (1) |
5 |
|
Freedom of thought, conscience, religion |
60. § (1) |
1 |
|
Rights of children |
67. § (1) |
2 |
|
Right to citizenship |
69. § (1) |
1 |
|
|
|
|
|
Act No. LXXVII of 1993 on the rights of national and ethnic minorities |
||
|
Right to freedom from discrimination |
3. § (5) |
24 |
|
Right to self-governance |
5. § |
17 |
|
Right to identity and its admission |
7. §, 8. §, 15. § |
5 |
|
Right to equal opportunities |
9. § |
11 |
|
Right to participate in public life |
10. § |
1 |
|
Right to the mother tongue |
12. § |
1 |
|
Right to establish organisations |
17. § |
1 |
|
Right to initiate education, right to own education |
43. § (1)–(4) |
11 |
|
Right to establish minority self-government |
21. § |
1 |
|
Financial management right of minority self-government |
27. § (4) |
12 |
|
Right of minority self-government to use premises |
28. § |
4 |
|
Right of consent |
29. § (1) |
14 |
|
Right of national minority self-governments |
|
|
|
to comment on legislation |
38. § (1) |
3 |
|
Right of national self-government to make decisions |
37. § |
1 |
|
Right to take over institutions |
47. § |
2 |
IX.
Appendix
In our report on year 1999 we disclosed the draft of the act on the rights of national and ethnic minorities in Hungary, elaborated by our office.
To avoid misunderstanding we stressed both in the report and in the various committees and plenary session of Parliament that our draft does not meet the criteria of legislative proposal as per Article 25 of the Obtv. As is well known, the general rule is that a parliamentary commissioner may submit a proposal for legislation to any legislative body if in the course of their operations (inspections) they find that some irregularity relating to constitutional rights originates from a statutory rule or the lack of such. According to the Obtv. legislative proposals concerning the adoption or amendment of law - addressed to the Parliament itself - have to be submitted to the Parliament as part of the annual report, in general.
By submitting the draft of the ‘minorities act’ disclosed as an annex to our report last year, therefore, we did not aim to remedy a constitutional irregularity, instead, we intended to demonstrate that a codification task - aimed to co-ordinate the provisions of the Nektv. and the Ötv. in a single comprehensive act and that would help the work of those applying and enforcing the law - is not at all a mission impossible. As for the receipt and success of our ‘law drafting’ work, we received a lot of positive feedback from the various committees of Parliament and form the various drafting workshops (The Ministry of Justice and the Ministry of the Interior considered primarily the set of concepts and the definitions comprised in the draft, to be used in the course of the practical codification effort.)
Year 2000 could be referred to the ‘year of anti-discrimination’. The anti-racism conference took place in Strasbourg in preparation - together with similar conferences on other continents - of the world conference planned to be organised in the Autumn of year 2001.36
The Council of the European Union also adopted in year 2000 the directive on the prohibition of racial discrimination imposing medium term tasks of legislation on member states and candidate countries.
This year - in the course of the preparation of our report on year 2000 - we would like to follow our practice started last year, disclosing our anti-discriminatory draft as an appendix to the report.
In the case of this document as well, we hasten to note that it is not a formal legislative proposal as per Article 25 of the Obtv. Rather this is a piece of work that constitutes one possible ‘translation’ of the anti-discriminatory directive of the European Union adopted on 29 June 2000 (2000/43/EC), into the language of itemised law and statutes.
In the course of our codification and norm-building work we made efforts primarily to clarify concepts, with particular focus on the definition of the so-called indirect discrimination. In comparison with the EU directive we took into account local characteristics. In this area we focused special attention to the adjustment of the draft to the Hungarian legislative environment, taking into account areas of social life where negative discrimination has typically taken or may take place.
The draft disclosed in the annex, however, is not at all an unconditional and verbatim adoption of the expectations comprised in the EU directive without constructive criticism. For there are no traditions in the Hungarian legal system for the unconditional reversal of the burden of proof, indeed, such procedural rule could in some cases be in conflict with the assumption of innocence as has crystallised in the criminal and misdemeanour law. The directive applies regularly in the various situations in life and treats the category of ‘harassment’ as a violation constituting negative discrimination. The expression ‘harassment’ is applied in Hungary in day-to-day language use, (harassment at work, sexual harassment) and the legal definition of the term has not yet been elaborated. We made an attempt to construct a separate category of misdemeanour on the concept - in view of the danger of the behaviour on the society - the creation of which could be a realistic possibility (and social requirement) regardless of the acceptance of the anti-discriminatory draft.
In respect of our report on year 2000 it is a new element that it contains the ‘real’ legislative proposals of our office based on various concrete issues. For in the case of certain statutes of law and legal institutions we had to point out the contradictory or deficient nature of the regulations. In order to facilitate the work of the legislator these proposed solutions are presented in the Appendix to our report in a ‘norm like form’, in a breakdown by statute to be amended. Of course, no detailed reasons will be attached to them in the Appendix, our arguments being outlined in the descriptions of the various cases used for illustration.
(2 October 2000)
Act No. ……….. of 2001
on
Action against Racism and Xenophobia and on Assuring Equal Treatment
Having realised that more effective action against racism and xenophobia as well as the prohibition of adverse discrimination is the fundamental interest both of the community of nations and of Hungarian society; acting upon its obligation pursuant to Articles 7, 8 and 70/A of the Constitution; taking into consideration the fundamental principles set out in the instruments of international law ratified in Hungary; to assure equal treatment of persons without any prejudice, in particular without regard to their affiliations to racial, national or ethnic groups, the Parliament of the Republic of Hungary adopts the following Act.
Chapter I
Fundamental Provisions
Scope
(2) The provision under Section (1) also includes measures and conduct related to deceased persons and the rights of relatives to piety.
The right to equal treatment
Article 2. (1) The Republic of Hungary shall provide equal rights to all its citizens, irrespective of and without consideration to their racial, national or ethnic identity or colour of skin (hereinafter: ethnic identity) for their participation in public matters, use of services and participation in social and economic life with equal opportunities and equal dignity.
(2) Unless any international convention or act of law provides otherwise, foreign nationals without Hungarian citizenship staying in the territory of the Republic of Hungary legally shall also be entitle to the right to equal treatment as provided in Section (1).
(3) Foreign citizens and stateless persons staying in the territory of the Republic of Hungary in violation of legal regulations shall also be entitled to the right to equal treatment. In cases specified in international conventions or at the request of the person concerned, this rule may be disregarded provided such discrimination is justified by factors related to the ethnic or other identity of the applicant.
Article 3 (1) Any direct or indirect adverse discrimination or segregation of national persons or groups based on their actual or assumed ethnic identity shall be prohibited.
(2) The rights of natural persons or groups of natural persons belonging to specific social strata, aimed at promoting the retention of their identities, alleviating their disadvantages or improving their conditions and assuring equal opportunities, as well as rights arising from their citizenship status as defined in a separate act of law, or restrictions set out in regulatory procedures pursuant to the provisions of acts of law shall not constitute violations of the right to equal treatment.
Article 4 (1) In the event of the violation of the right to equal treatment, or the suspicion or danger thereof, the provisions of this Act shall be applicable to the investigation of the conditions of adverse discrimination and the establishment of the applicable legal remedies unless an act of law, or any other legal regulation pursuant to the authorisation contained in an act of law, provides otherwise.
(2) For the investigation or prevention of specific instances of adverse discrimination and for remedying the grievance caused by such discrimination, an act of law, or other legal regulation pursuant to the authorisation of an act of law, may specify different procedural rules and special legal consequences.
Direct Discrimination
Article 5 (1) In the interpretation of this Act, direct adverse discrimination occurs if any body or any person acting on behalf of a body (hereinafter together: the infringing party) treats a natural person or group, because of its actual or assumed ethnic identity, in a less advantageous manner than persons or groups of other ethnic identity, provided such action is not a criminal act..
(2) Adverse discrimination in accordance to Section (1) occurs, in particular, if the infringing party, in the course of its operations, economic or other activities, makes his action (operation, measures, service) conditional upon ethnic identity or the certification thereof, or if he rejects or excludes from his services persons or groups for such reasons or due to the absence of arbitrarily defined conditions.
Indirect Discrimination
Article 6 In the interpretation of this Act, indirect adverse discrimination occurs if the infringing party formally accords equal treatment to every natural person or group (irrespective of their ethnic identity) – setting identical conditions, pursuing identical practices, adopting identical resolutions-, but in terms of its effects such treatment is disproportionately disadvantageous for certain persons or groups identifiable by their ethnic identity, or such damage is foreseeable..
Segregation
Article 7 (1) Direct adverse discrimination occurs if groups of persons are openly or covertly segregated from each other because of their ethnic identity, and there is no reasonable legal cause for such segregation.
(2) Direct adverse discrimination in the meaning of Section (1) shall also occur if the exercise of rights by groups defined in terms of their ethnic identity, or of members of such groups, or their use of public or other services is made conditional on criteria as a result of which the exercise of rights or use of services is possible only in a segregated manner.
(3) No adverse discrimination within the meaning of Section (1) shall occur if the segregation of such groups occurs voluntarily, in order to retain the internal cohesion and relations of the group.
Article 8 (1) The infringing party shall not commit adverse discrimination in the meaning of Articles 5-7 if:
a) his actions have an unavoidable reason beyond his control (force majeur);
b) there are objective criteria to prove the adequate and necessary nature of his actions (measures);
c) his actions (measures) are necessary to achieve some legal objective or goal that cannot be achieved by other means less detrimental in their effects, provided the grievance thus caused is not disproportionately greater than the results achieved or reasonably expected.
(2) In addition to the exception set out in Section (1), no adverse discrimination shall occurs if the infringing party, acting with due care, had no way to foresee the occurrence of the grievance, and took measures to prevent further grievance in a reasonable timeframe.
Interpreting Provisions
Article 9 In the interpretation of this Act:
a) Economic association: the organisations, legal entities or natural persons listed in 685. § c) of the Act No. IV of 1959 on the Civil Code.
b) Authority: central government and public administration agencies, regional and local public administration bodies, non-governmental organisations or persons vested with regulatory powers, municipalities and service providers, economic associations, public foundations or associations performing public duties.
c) Facilities open to the public: the locations, premises or assets of natural or legal persons, economic associations or institutions providing public or other services used for the provision of such services or the performance of related activities, including the sites of public events without the scope of the Act on the right of assembly.
d) Employee: a natural person who engages in work under an employment relationship, or answers the announcement (advertisement) of an employer with the intent of establishing an employment relationship.
e) Labour relations: any legal relations established for the purpose of performing work within the territory of the Republic of Hungary, or abroad on detached service pursuant to Hungarian legal regulations (on the territory of another state, on ships or airborne vehicles), irrespective of the nature of public or other bodies, the organisational or ownership forms of the employer.
f) Employer: any public, municipal or other business or non-governmental organisation that may establish labour relations or make decisions related to employees including the refusal to establish labour relations.
g) Training (educational) institution: irrespective of its operator or founder, nursery schools, kindergartens, elementary or secondary schools, collages or universities performing functions of primary, secondary or higher education, as well as student hostels and dormitories.
h) Test purchase: the official testing of services provided in facilities open to the public to establish whether the service provider violates the principle of equal treatment. Test purchase shall mean, in particular, the testing of decision making practices and actions of employers and training (educational) institutions.
i) The right to social security: the right to housing (accommodation), with the exception of the circumstances necessitating the care of governmental or municipal bodies, as listed in Article 70/E (1) of the Constitution.
Chapter II
Procedural Rules
Article 10 (1) The prevention and elimination of adverse discrimination attributable to ethnic identity is a common matter for the whole society, a common interest for which the main responsibility rests with the State.
(2) The Republic of Hungary meets its obligations under Section (1) through the operation of a system of institutions and procedures specified by law; furthermore, it promotes the establishment of non-governmental (non-profit or other legal entity) legal aid organisations, and to the best of its abilities assists them in their activities aimed at the prevention, disclosure and remedy of adverse discrimination.
Initiating Proceedings due to
Adverse Discrimination
Article 11 (1) The occurrence of adverse discrimination may be reported by anyone to any authority.
(2) Bona fide informers shall not suffer any disadvantage because of their report; they are entitled to protection identical to that accruing to reporters of information of public interest.
(3) The informant may request his identity to be kept confidential in the course of the proceedings started upon his initiative. This request shall be honoured unless the information reported is proved to be in bad faith.
Article 12 (1) Authorities shall inform the body vested with powers and competence to investigate immediately, but not later than within eight days of taking cognisance of such fact, of the fact or suspicion of adverse discrimination it has cognisance of, indicating any evidence pertaining to the case.
(2) The communication described in Section (1) shall include a written comment as well as information about any measures taken in the case.
Article 13 (1) Every authority shall design a customer service system that is capable of assuring the exercise of the right to equal treatment.
(2) In order to meet the requirement set out in Section (1), authorities shall assure that their employees, as appropriate for their spheres of operation or activities, possess appropriate knowledge about the concept of adverse discrimination and the legal and social means of combating such discrimination.
General Rules of Evidence
Article 14 (1) Unless this Act provides otherwise, in the case of direct adverse discrimination the proof of burden that the infringement occurred, exists or is impending is on the person (organisation) claiming such discrimination.
(2) If the occurrence, existence or impending danger of direct adverse discrimination is probable in connection with the procedure, action or omission of some authority, the party causing the assumed damage has the burden of proof to show that no adverse discrimination has been committed.
Article 15 (1) In case of a claim of indirect adverse discrimination as set out in Article 6, the infringing party has the burden of proof to show that his conduct, in view of the provisions of Article 8, were not infringing, or that no infringement of law is to be expected.
(2) In addition to the case described in Section (1), the presumed infringing party may also prove that its objected action, regulation or omission is not disproportionately more unfavourable for certain persons or groups defined in terms of their ethnic identity than for others.
Certain Tasks of Parliament
Article 16 (1) Any natural person or organisation may turn to the Parliamentary Commissioner for National and Ethnic Minority Rights (hereinafter: the Parliamentary Commissioner) requesting the establishment of adverse discrimination due to ethnic identity; the Parliamentary Commissioner is entitled and obliged to investigate such complaints submitted, with the exceptions provided in this Act..
(2) The investigative powers of the Parliamentary Commissioner shall include the establishment of adverse discrimination due to ethnic identity against all natural persons or groups staying in the territory of the Republic of Hungary, but if the persons concerned fall under the scope of the Act No. LXXVII of 1993 on national and ethnic minority rights (hereinafter: Minorities Act), he has the exclusive competence to conduct proceedings, with the exceptions set out in this Act.
(3) With the exceptions set out in this Act, the proceedings of the Parliamentary Commissioner shall be governed by the provisions of the Act No. LIX of 1993 on the Parliamentary Commissioner for Civic Rights (hereinafter: PC Act), with the difference that an investigation into adverse discrimination may also be initiated if the aggrieved person has not exhausted the available public administrative legal remedies, except if five years have elapsed since the occurrence of the grievance.
(4) The Parliamentary Commissioner may not proceed in cases where court proceedings have been commenced to investigate the adverse discrimination or other act including such discrimination that has been reported to him or that he otherwise takes cognisance of. If the proceedings of the Parliamentary Commissioner were commenced prior to the commencement of the court proceedings, the former shall be terminated..
Article 17 (1) The investigation of the Parliamentary Commissioner may be commenced upon a complaint (report) or ex officio. In the course of the investigation, he may request information, clarification, data or explanation form any authority, economic entity (or members thereof); the party approached shall respond to the request within 30 days.
(2) The Parliamentary Commissioner shall not conduct an investigation ex officio in individual cases contrary to the express wish of the person concerned (aggrieved person).
(3) The Parliamentary Commissioner may also exercise his right to information as set out in Section (1) in relation to courts..
(4) The Parliamentary Commissioner shall be entitled to make inspections or collect information, personally or through his staff, at the institutions listed in Section (1) even without prior notification to the investigated authority; however, in the course of such activities he may not jeopardise the regular operation of the inspected body and may not cause disproportionate inconvenience compared to the purpose of the inspection..
(5) With the exception of the case described in Article 16 (4), the investigation of the Parliamentary Commissioner shall be completed by the establishment or exclusion of the fact of adverse discrimination, or the declaration of the impossibility to establish evidence.
Article 18 (1) The Parliamentary Commissioner shall send his findings on the merits of the case in writing, together with his recommendations concerning the measures he considers justified, to the infringing party, the initiator of the investigation as well as the persons affected by the case and the authorities obliged or entitled to take action.
(2) The persons or bodies informed pursuant to Section (1) (hereinafter: the interested parties) may comment on the contents of the report of the Parliamentary Commissioner in writing within 30 day of receipt of such report.
(3) Having familiarised himself with the comments (objections) pursuant to Section (2), the Parliamentary Commissioner shall decide in another 30 days whether to modify, maintain or revoke the findings stated in his report. He shall communicate such decision in writing to the interested parties.
Article 19 (1) If the Parliamentary Commissioner in his report establishes the existence of adverse discrimination, he shall, if appropriate, call on the infringing party to provide appropriate redress and to terminate the infringing practice.
(2) If the infringing party acknowledges, implicitly or in a written statement, the condemnation or recommendation in the report of the Parliamentary Commissioner, the fact of adverse discrimination shall deemed to have been established pursuant to this Act.
Article 20 (1) On the basis of the report of the Parliamentary Commissioner, if such report contains recommendations for the redress of the infringement, in particular inviting the infringing party to pay compensation or take specific action, a direct enforcement procedure may be initiated in case of failure to act upon such recommendations.
(2) The report of the Parliamentary Commissioner specified in Section (1) shall be considered equal to a final public administration resolution in terms of the enforceability of its contents.
Litigation
Article 21 (1) If the infringing party or the aggrieved party disagrees with the contents of the report of the Parliamentary Commissioner because of the condemnation, the finding of absence of adverse discrimination or any other reason pertaining to the merits of the case, it may request, within 30 days of receipt of the report, the court to review the findings of the report of the Parliamentary Commissioner.
(2) Missing the deadline entails the forfeiture of rights for each interested party and invokes the provisions of Articles 19-20.
Article 22 (1) Acting upon the request of the infringing party for review, the court, in a non-litigious procedure shall decide, within 30 days and after hearing the parties if appropriate, whether the findings or recommendations in the report of the Parliamentary Commissioner are justified. The Parliamentary Commissioner shall not be a party to the procedure, but he may supplement his report orally or in writing if necessary.
(2) If the court sustains the request for review, it shall, in whole or in part, annul or modify (correct, supplement) the report of the Parliamentary Commissioner; in default whereof it shall reject the request.
(3) In the course of its procedure conducted upon the request of the infringing party, the court may also decide on the issue of the remedy – ordering the payment of compensation or other measure – recommended by the Parliamentary Commissioner to remedy the infringement. If the establishment of the level and mode of compensation for the injury caused requires taking evidence, the court shall direct the assessment of such claim, filed or to be filed, to other legal routes.
(4) Conducting the non-litigious procedure as described in Section (1) shall be the competence of the country (metropolitan) court competent at the address of the party initiating the court review (the infringing party or the aggrieved party).
Article 23 (1) If several country courts are competent to conduct the court proceedings based on the addresses of the parties entitled to initiate court review, the proceedings shall be conducted at the court that is competent at the area where the majority of such parties are domiciled; or in the absence of such majority, the court where the request for court review was first filed..
(2) The court proceedings shall be governed by the provisions of Act No. III of 1952 with that there is no regular legal remedy available against the ruling of the court.
Article 24 (1) If the party aggrieved due to the adverse discrimination disagrees only with the recommendations of the Parliamentary Commissioner as to the remedies to his grievance, in particular if he objects to the level of compensation recommended or the mode of non-pecuniary remedy (hereinafter together: compensation), he may request, quoting the established adverse discrimination, the local court with competence and powers to determine the level (mode) of compensation.
(2) The court may proceed on the merits of a claim submitted pursuant to Section (1) only if the fact of adverse discrimination has been established in accordance with the provisions of Article 19 (2) or Article 22 (2) on the basis of the decision of the Parliamentary Commissioner or of the county court.
(3) If the court review of the contents of the report of the Parliamentary Commissioner is ongoing, the local court shall suspend its proceedings until the former is completed.
(4) The litigious procedure pursuant to Section (1) shall be governed by the provisions of Act NO. III of 1952 on the Civil Procedures.
Article 25 (1) If, due to the grievance caused by the adverse discrimination other than the violation of personality rights (labour, administrative or other) court proceedings are or may be applicable under rules specified in a separate act of law, the aggrieved party may enforce such claims at such forums in litigious proceedings.
(2) The complaint or report submitted to the Parliamentary Commissioner shall not substitute for the utilisation of statutory legal remedy forums, and has no delaying effect in respect of the omission of procedural actions.
(3) The litigation in accordance with Section (1) does not preclude the investigation of the Parliamentary Commissioner provided the legal dispute subject to the court proceedings may affect the rights or interests of other persons or groups in addition to the parties to the litigation, or that the litigation related to adverse discrimination was caused by some generally applicable, incorrect decision or measure of an authority and that there is justified concern that such cases may occur repeatedly. However, the Parliamentary Commissioner has only a right to receive information in connection with court proceedings started because of adverse discrimination.
Other Procedures of Authorities
Article 26 (1) If, due to the grievance caused by the adverse discrimination other than the case mentioned in Article 25, disciplinary, petty offence, public administration or other regulatory proceedings are initiated under rules specified in a separate act of law, the aggrieved party may enforce his claims at such forums as well.
(2) The proceedings mentioned in Section (1) do not preclude the investigation of the Parliamentary Commissioner, upon request or ex officio, or the initiation by the Parliamentary Commissioner of action by such authorities or the conduct of joint investigations.
(3) If, however, the decisions made in the regulatory proceedings mentioned in Section (1) proceed to court review, the Parliamentary Commissioner shall terminate his investigation, with the exception of the case described in Article 25 (3).
Enforcement of the Public Interest
Article 27 (1) The State or non-governmental interest representation organisations are entitled to take action, with the consent or upon the request of the aggrieved party, on behalf of the person who suffered adverse discrimination because of his ethnic identity, in order to seek the termination of adverse discrimination or to remedy any injury caused thereby.
(2) The right to representation of the interest representation organisations mentioned in Section (1) in front of authorities is specified in a separate act of law.
Chapter III
Specific Instances of Adverse Discrimination due to Ethnic Identity and
Combating such Discrimination
Labour Discrimination
Article 28 (1) Irrespective of their ethnic identity, persons and groups shall be entitled to equal rights in their labour relations as well as in the course of their legal gainful employment outside labour relations..
(2) It shall be prohibited to set ethnic identity based criteria for the acquisition of work (employment, hiring) or for the pursuance of private entrepreneurship, except if such criteria are attendant upon the pursuit of legal (permitted) activities. In such instances the employer shall have the responsibility to prove the reasonable and legal nature of such criteria.
(3) Employees working for the same employer, performing identical or similar work or work of equal value shall be entitled to equal treatment irrespective of their ethnic identity in terms of:
a) the definition of labour conditions,
b) the design of the system of remuneration and promotion (to a higher position),
c) the design of further training and re-training (vocational training) programmes,
d) the award of allowances (bonuses) and other benefits usual at the employer,
e) the design of the conditions and rules of disciplinary proceedings and other proceedings aimed at establishing responsibility at work conducted against employees, as well as
f) a decisions resulting in the termination or significant alteration of labour relations (dismissal, reorganisation).
(4) In the interpretation of this Article:
- work of equal value shall mean work requiring equal levels of qualification, effort or responsibility, or work to be performed under essentially identical working conditions;
- b) promotion to a higher position shall mean a decision by the employer whereby the employee may work in a position corresponding to a higher level of qualification and entailing greater responsibility and higher income.
- (5) Without differentiation in accordance with Section (3), identical criteria shall be set for participation (membership) in employer’s and employees’ organisations, including the possibility of making use of resulting benefits.
Article 29 (1) Adverse indirect discrimination in labour relations shall exist if a regulation, measure or criterion related to labour relations, which in formal terms sets the same requirements and offers the same rights to everyone is disproportionately unfavourable for a group of employees definable in terms of their ethnic identity, except if the appropriate and necessary nature thereof can be justified by objective factors.
(2) In the application of Section (1), regulations, measures, criteria and practices preceding and conducive to employment shall be deemed to be employment related.
Article 30 (1) If direct or indirect adverse discrimination is claimed in connection with the actions of an employer or if the suspicion of adverse discrimination arises in the course of any labour dispute, the employer shall have the burden of proof to show that his actions did not violate the provisions prohibiting adverse discrimination.
(2) The burden of proof mentioned in Section (1) shall rest on the employer irrespective of the authority - with competence to investigate such infringement - in the proceedings of which adverse discrimination is claimed.
Article 31 In making governmental labour or economic policy decisions the ethnic characteristics of various regions or settlements shall be taken into consideration so that groups definable in terms of their ethnic identity have equal opportunities in respect of obtaining work and pursuing gainful employment.
Legal Consequences of Labour Discrimination
Article 32 (1) If it is established that the employer committed adverse discrimination during labour relations or other employment relations the employer shall be obliged to place the employee into a situation as if the infringement had not occurred or, it that is impossible, to minimise the consequences of the injury caused to the best of its abilities.
(2) Pursuant to his obligation under Section (1) the employer, taking into consideration the nature of the injury to the employee and the employee’s claims, shall pay compensation or take measures necessary to redress the infringement.
(3) Remedying the injury to the employee affected by adverse discrimination may not involve the violation or limitation of the rights of other employees.
(4) Upon the request of the aggrieved party, compensation may be provided on a voluntary basis, upon the recommendation of the Parliamentary Commissioner or pursuant to a decision by an authority (court).
Article 33 (1) Legal regulations may specify other legal consequences beyond the ones set out in Article 32 for the various instances of adverse discrimination, adapted to the nature and gravity of infringement; in particular, they may restrict the participation of infringing enterprises or economic associations in business (government contracts, public procurement tenders) and order their identity to be disclosed, with reference to the adverse discrimination committed, in the media, trade and official journals.
(2) The legal consequences set out in Section (1) shall also be applicable if the employer was ordered by court to pay compensation or meet other obligations in connection with the adverse discrimination.
Discrimination in Education>
Article 34 (1) Every natural person, irrespective of his ethnic identity, shall be entitled to receive equal standards of training and education appropriate for his age and abilities in some training (educational) institution.
(2) The right set out in Section (1) shall include the right to equal treatment in terms of the specification of admission criteria, tuition fees, training and educational conditions as well as the award of scholarships, aid or other benefits.
(3) The right to being subjected to equal admission criteria as per Section (2) may be restricted by acts of law in respect of minority (nationality) educational (training) institutions serving the purpose of and founded for the maintenance of linguistic or cultural identity.
Article 35 (1) In training (educational) institutions it shall be prohibited to segregate the children, pupils, students (hereinafter: students) admitted, or isolate them in separate classes or groups based on their ethnic identity.
(2) The prohibition in Section (1) shall not include cases where upon the initiative of parents as set out in a separate act of law minority (nationality) education is organised in the educational institutions, the objective and curriculum of which justifies the formation of separate minority (nationality) classes or groups.
(3) The prohibition if Section (1) does not cover the segregation of students studying at nationality departments in higher education institutions as justified by the nature and characteristics of such education.
(4) Training (educational) institutions shall provide equal opportunities for studying, sports activities, accommodation (sojourn) and catering for all students, especially if there is a legally formed class or group within the institution reflecting ethnic identity and operating under a minority (nationality) curriculum.
Article 36 (1) The content of course books (teaching aids, anthologies) used in training (educational) institutions shall not be aimed at violating the dignity or honour of groups due to their ethnic identity.
(2) Training (educational) institutions shall not permit the formation or operation of extra-curricular activities, student societies or other student organisations which have the explicit or implicit objective of the discrediting, stigmatisation or segregation of persons or groups with different ethnic identities
Legal Consequences
of Discrimination in Education
Article 37 (1) The enforcement of the principle of equal treatment, the prevention, termination and remedying of adverse discrimination shall be the primary responsibility of the head of the training (educational) institution.
(2) In his responsibility under Section (1), the head of institution shall assure, in particular, that
a) the instructors and employees of the institution are aware, to the extent necessary the discharge of their duties, of the concept of adverse discrimination and the techniques necessary for its disclosure;
b) the house rules, educational and examination procedures and other internal policies of the training (educational) institution comply with the principle of equal treatment;
c) disciplinary action is initiated as a result of adverse discrimination exhibited by employees of the institution.
Article 38 If the actions of the head of institution constitute adverse discrimination, the organisation maintaining the institution shall initiate disciplinary proceedings against him.
Article 39 (1) If adverse discrimination is established to have occurred in connection with the admission procedure of the training (educational) institution, the aggrieved party shall be placed in a situation as if such infringement had not occurred.
(2) If redress to the grievance discussed in Section (1), in particular later admission to the training (educational) institution is impossible, the infringing institution shall provide for legal remedy as set out in a separate legal regulation.
Article 40 (1) If the training (educational) institution is repeatedly found guilty of adverse discrimination or fails to take the measures it is ordered to take to remedy such grievances, it may be excluded from participating in all state (public foundation) tenders for one year.
(2) The legal consequence set out in Section (1) shall be imposed by the head of the public administration office with territorial competence over the address of the training (educational) institution upon the proposal of the Parliamentary Commissioner. Such decision shall be published in the Magyar Közlöny.
(3) No appeal shall lie against the decision of the head of the public administration office pursuant to Section (2), but the court review thereof may be requested. The decision of the court shall be published in the Magyar Közlöny.
Social Discrimination
41. § (1) All Hungarian citizens shall be entitled to equal treatment irrespective of their ethnic identity in the fields of social care and social security.
(2) A different level of social case or social security benefits in acccordance with criteria defined ina separate act of law shall not constitute the violation of the right to equal treatment as set out in Section (1).
(3) Acts of law or other legal regulations pursuant to the authorisation in an act of law may establish, within the framework of the system of social benefits, additional benefits for social groups definable in terms of their social identity in order to eliminate or alleviate their inequlality of opportunities.
Article 42 (1) In order to assure equal rights to social security, equal conditions shall be provided for all, irrespective of their ethnic identity, in the field of housing and obtaining a home; it shall be forbidden, in particular, to
a) apply adverse discrimination in the provision of government subsidies and housing (construction, purchasing, expansion) loans for the purpose of obtaining housing;
b) set conditions for the sale or lease of government or municipality owned homes or land for construction that would provide unjustified advantages or disadvantages to certain groups of the population;
c) refuse or set conditions for the issuance of construction (occupancy or other building regulatory) permits on the basis of ethnic identity.
(2) It shall be prohibited to define criteria for housing (obtaining a home) in such a manner that would result in the artificial segregation of certain groups definable in terms of their ethnic identity in a community (or part thereof).
Article 43 (1) In instances defined in Articles 41-42, with the exception of the provisions of Section (2), the person claiming adverse discrimination shall prove that
a) the presumed infringing party treated him less favourably than it did, or would, persons with different ethnic identities, and
b) the less favourable treatment was related to his ethnic identity, and
c) the treatment objected to caused him injury.
(2) If the adverse discrimination is claimed in connection with the procedure, measure or omission of some authority, the perpetrator of the presumed infringement shall prove that he has not committed such infringement.
Legal Consequences
of Social Discrimination
Article 44 (1) If the fact of adverse discrimination is established in connection with the right to social security, and such injury may be expressed in pecuniary terms, the party found guilty of the infringement shall pay a pecuniary compensation not exceeding one and a half times the damage caused (forgone profits).
(2) If the injury may not be expressed in pecuniary terms, the infringing party shall provide appropriate compensation, in particular to bring the aggrieved party, through in-kind compensation, into a position as if the infringement had not occurred.
(3) If compensation as provided for in Section (2) is impossible for adverse discrimination in the definition of criteria for obtaining housing, the infringing party shall provide housing adequate for the legal demands of the aggrieved party in exchange for a consideration of fifty percent of the current market price..
45. § (1) The infringing party may undertake, voluntarily, at the request of the aggrieved party, or upon the recommendation of the Parliamentary Commissioner, to bear the legal consequences defined in Article 44, or to provide the resulting pecuniary or other compensation, or may be obliged to do so by the decision of an authority.
(2) The extent and mode of compensation or remedy shall be defined primarily on the basis of the agreement of the infringing party and the aggrieved party; in the absence of such agreement, the court shall decide on the issue of remedying the injury caused by the infringement.
Medical Discrimination
Article 46 (1) Medical services shall be available to all as persons with equal dignity and under equal terms, as appropriate for their medical condition and needs, irrespective of their ethnic identity.
(2) The right to equal treatment shall include, in particular, the use of identical health care institutions – facilities for care and sojourn – the right to participate in treatment of the same standard and efficacy, not entailing higher risks, and in prevention programmes (screening).
(3) The identical treatment as described in Section (2) may also be dispensed with, at the request of the person concerned, if such discrimination is justified by factors arising from the ethnic (religious) identity of the applicant.
Article 47 (1) In the event of adverse discrimination by the violation of the provision of Article 46, the medical service provider shall have the burden of proof to show that no adverse discrimination occurred or, even if the principle of equal treatment was violated, it was upon the request of the person concerned (the patient), or there were other objective factors necessary for public health or medical reasons justifying such discrimination.
(2) In investigating the adverse discrimination by medical service providers, the Parliamentary Commissioner shall co-operate with the medical authorities and the representatives of patients’ rights.
(3) The organisations mentioned in Section (2) shall inform each other about the occurrence of adverse discrimination by medical service providers as well as any circumstances giving rise to the investigation thereof, in accordance with the procedures specified in a separate act of law.
Article 48 (1) Medical research or health surveys considering or indicating the ethnic identity of individuals may be conducted exclusively in compliance with the provisions of the Act No. LXIII of 1992 on the protection of personal data and the disclosure of public information as well as the rules set out in the relevant international conventions.
(2) In addition to the requirements set out in Section (1), the consent of the Commissioner for Data Protection must also be acquired for such research, indicating the purpose of research and attaching the research plan.
Legal Consequences of Medical Discrimination
Article 49 (1) In case of adverse discrimination established in medical services, the head of the medical service provider, or in the absence of such, the body maintaining the institution shall conduct disciplinary proceedings.
(2) In case of the repeated adverse discriminative acts of a medical service provider, it such provider fails to take the necessary action or to initiate disciplinary proceedings to terminate the infringing situation despite the order to do so and within the established deadline, the head of the public administration office competent at the address (place of operation) of the party concerned shall
a) impose of fine between fifty thousand Forints and one hundred and fifty thousand Forints on the head of the medical service provider;
b) set up a disciplinary panel, concurrently suspending the head of the medical service provider from his position, and, following consultation with the line minister, appoint a supervisory commissioner to manage the health service provider.
(3) No appeal shall lie against the decision of the head of the public administration office specified in section (2); the review of the public administration decision may be requested from the court.
Article 50 (1) If the established adverse discrimination caused specific (monetary) injury, the aggrieved party may request compensation from the infringing medical service provider in accordance with the rules governing compensation for injury caused by malpractice, or, in the absence of voluntary compliance, may turn to court requesting the establishment of compensation.
(2) The litigious procedure mentioned in Section (1) shall be governed by the provisions of the Act No. III of 1952 on the Civil Procedures. The court procedure shall not prevent the application of the legal consequences set out in Article 49..
Article 51 (1) As a result of the adverse discrimination established to have been committed by the medical service provider, in kind compensation for the injury cause thereby may also be provided, in addition to the compensation set our in Section 50.
(2) Depending on the nature of the injury suffered and the consent of the aggrieved party, the medical service provider may undertake to provide health care services, in particular awareness raising, information provision, health screening, rehabilitation and other after-care free of charge or at a discount.
Public Administration (Administrative) Discrimination
Article 52 (1) All persons staying in the territory of the Republic of Hungary (hereinafter: customers) shall be entitled to conduct their regulatory (official) businesses in front of the public administration bodies specified in legal regulations, free from any adverse discrimination irrespective of their ethnic identity.
(2) The right to equal treatment under Section (1) shall include the right to use his mother tongue, as well as the right to make use of all instruments made available to him by procedural laws in the course of enforcing his rights and administering his affairs.
Article 53 (1) All authorities providing public administration functions have particular responsibility, over and above the obligation set out in Articles 12-13, to prevent or eliminate all forms of adverse discrimination possible in the proceedings they conduct.
(2) Authorities shall continuously monitor the enforcement of the rights of customers, and eliminate any factors hindering the exercise of rights of persons or communities belonging to some ethnic group.
(3) The customer service procedures and the customer service bureaux must be designed in such a manner as to assure the unhindered enforcement of the right to equal treatment to all.
Article 54 (1) It shall not constitute adverse discrimination if the various authorities, in line with the needs of their customers and their capabilities, set a different procedure for customer service (time, venue) for their clients with various ethnic identities and with different mother tongues in order to assure the use of foreign languages.
(2) Even where the provisions of Section (1) are applied, it shall be assured that the conditions for customer service are of equal standard, and the location and conditions of customer service may not violate the right of customers to equal dignity.
Article 55 If adverse discrimination is claimed in connection with the operation, procedure, decision (resolution) or action (hereinafter together: action) of some authority, the authority shall always have the burden of proof to show that its actions did not violate the prohibition of adverse discrimination.
Legal Consequences of Public Administration
(Administrative) Discrimination
Article 56 (1) If the Parliamentary Commissioner or a court declares the action of some authority to be infringing due to it constituting adverse discrimination, disciplinary action shall be initiated against the infringing official.
(2) If the identity of the person responsible for the infringement cannot be established within the staff of the authority, the disciplinary action shall be initiated against the head of such authority.
Article 57 (1) With the exceptions set out in this Act, ordering disciplinary actions in accordance with Article 56 shall be the responsibility of the head of the country (metropolitan) public administration office competent at the address of the public administration body concerned; in particular, he shall provide for the appointment of the members of the disciplinary panel and of the disciplinary officer.
(2) If a motion for the exclusion of the head of the public administration office is submitted, or if he declares bias, the minister of interior shall appoint another public administration office to conduct the disciplinary action.
Article 58 (1) In case of an infringement by an employee of a central public administration body, the disciplinary action in accordance with Article 56 shall be conducted by the head of the body concerned, or, if his personal responsibility may also be involved or a reason for his exclusion emerges, the head of the superior public administration body provides for the initiation of disciplinary action.
(2) The disciplinary action required in Article 58 may establish, in addition to the person to be taken to account, exclusively the degree and mode of disciplinary punishment. No regular legal remedy is available against such decision except if the court establishes in the course of a review or retrial procedure that the respondent did not commit adverse discrimination.
(3) In the event described in Section (2), the imposed disciplinary penalty shall be annulled concurrently with the decision of the court.
Public Service Discrimination
Article 59 (1) In facilities open to the public, in particular in catering or commercial units or facilities established for the purpose of education or recreation, the right to equal treatment of all persons shall be assured, irrespective of their ethnic identity, during the use of public and other services offered by such facilities.
(2) The right to equal treatment includes, in particular, the right to equal entry criteria, to information necessary for the use of the service and to the same standard of services.
Article 60 (1) In facilities open to the public (on their premises) it shall be forbidden to display signs or notes indicating, or allowing for the conclusion that anyone is excluded from the services offered therein due to his ethnic identity.
(2) Entry may be limited or made conditional into facilities open to a narrower community established, for the members of a group definable by its ethnic identity, for the purpose of observance of traditions or other legal activities.
(3) The restriction set out in Section (2) must be clear from the name of the facility and the conditions of making use of the services, and it may not occur in a manner that is humiliating for, or capable of violating the honour of, persons with a different ethnic identity.
Article 61 (1) In facilities open to the public the occurrence of adverse discrimination – prevention of entry, refusal of service, setting conditions for or lower standards of services – shall be proved by the aggrieved party.
(2) The collection of evidence set out in Section (1) may be assisted by governmental inspection bodies or non-governmental organisations by conducting test purchases.
Legal Consequences of Public Service Discrimination
Article 62 (1) If the fact of adverse discrimination is established, the town clerk with territorial competence shall impose a fine between fifty thousand Forints and two hundred thousand Forints on the head of the facility (organiser of the event).
(2) In the event of repeated adverse discrimination the fine set out in Section (1) may be increased to five hundred thousand Forints; furthermore, the town clerk may order the revocation of the operating licence of the facility open to the public for a period of between thirty and ninety days.
(3) The proceedings set out in Section (1)-(2) and the legal remedy against the public administration decision shall be governed by the provisions of Act No. IV of 1957 on the general rules of public administration procedure.
Chapter IV
Closing Provisions
Coming into Effect
Article 63 (1) This Act, with the exception of Articles ……………, shall come into effect on ………….. .
(2) Articles ……… of the Act shall come into effect on …………… .
Legal Regulations to be Amended
Article 64 Article142 of the Act No. LXIX of 1999 on minor offences shall be supplemented with the following Article 142/A:
Version “A”
"Harassment due to Membership of an Ethnic Group
Article 142/A (1) Persons who
a) exhibit conduct against a person or group, due to their ethnic identity, that involves adverse discrimination, which is capable of promoting a hostile, segregating environment against such group,
b) disclose facts or judgements about the group defined in Section (1) a) in a manner that is capable of promoting a hostile, segregating environment against such group,
may be subjected to a fine of up to one hundred thousand Forints.
Version “B”
"Harassment
Article 142/A (1) Persons who
a) exhibit conduct against a person or group, due to their ethnic, sexual, religions identity or wealth or other social position, that involves adverse discrimination, which is capable of promoting a hostile, segregating environment against such group,
b) disclose facts or judgements about the group defined in Section (1) a) in a manner that is capable of promoting a hostile, segregating environment against such group,
may be subjected to a fine of up to one hundred thousand Forints.
Article 65 (1) The Government Decree No. 218/1999. (XII. 28.) Korm. (hereinafter: D.) on certain offences shall be supplemented with the following Article 8/A.:
Version "A"
“Illegal Advertising
Article 8/A Persons who publish advertisements containing adverse discrimination due to race, colour, national or ethnic origin, or conducive to drawing such conclusion
shall be punishable by a fine of up to one hundred thousand Forints."
Version "B"
Article 8/A Persons publishing advertisements which violate legal regulations or are capable of deceiving the persons concerned
shall be punishable by a fine of up to one hundred thousand Forints."
(2) Article 141 of the D. shall be supplemented with the following new Section (2), the former Section (2) concurrently becoming Section (3):
“Non-compliance with Obligations Specified in the Act on Public Education
Version "A"
"Article 141 (2) Persons who fail to comply with the provisions set out in Section (7) Article 4 of the Act No. LXXIX of 1993 on Public Education
shall be punishable with a fine of up to fifty thousand Forints.
Version "B"
"Article 141 (2) Persons who adversely discriminate against children or the relatives thereof due to their colour, sex, religion, national or ethnic identity, nationality, ethnic or social origin, wealth or income position, age, total or partial incapacity, birth or other situation
shall be punishable with a fine of up to fifty thousand Forints."
Empowering Provisions
Article 66 (1) The Government shall be empowered to establish in a decree, within 12 months of the promulgation of this Act:
a) the forms and techniques of compensation awardable due to adverse discrimination manifested by training (educational) institution as defined in Article 39 (2);
b) the procedures for the information obligation in respect of the health authorities and representatives of patients’ rights as defined in Article 47 (3).
(2) The Government shall be empowered to provide, in line with the provisions of this Act, for the preparation for the amendment of sectoral legislation within two years of the coming into effect of this Act so that safeguards are in place for the identification and remedying of adverse discrimination.