Report
on the Activities of the Parliamentary
Commissioner
for the Rights of National and Ethnic Minorities
1 January– 31 December 2001.
Published by: the
Office of the Parliamentary Commissioner
Responsible editor: Dr. Jenõ Kaltenbach
Introduction
The state of minority rights in 2001.
“2001 had been a bad year from the point of view of human rights.” The outgoing President of the Parliamentary Assembly of the Council of Europe made this statement. Naturally, the outrageous criminal attempt of September 11 and the following events are mentioned first among its reasons, but the spectacular failure of the World Conference Against Racism in Durban is a warning sign. Who else could be more competent to judge the situation than the Council of Europe, the only organisation that integrates the entire Europe and its most important field of action since its establishment fifty years ago is a ceaseless activity for democracy, the rule of law and first of all for the observing human rights?
It has indicated in one of its recent publications that the creation of a tolerant Europe free from racism and prejudices is one of the most urgent tasks [1] . The Council of Europe has established almost ten years ago the Commission Against Racism and Intolerance just for this purpose, and this committee annually prepares its summary report. Its current annual report calls attention to the following major trends. [2]
Racial discrimination continues to be a fundamental problem in Europe reflecting close relationship with the lack of adequate anti-discrimination laws. The Commission continues to urge Member States to enact laws that are capable of preventing discrimination particularly in the fields of employment, education, housing and services. In those countries where such laws are in force, their effective implementation should be further improved. In this interest the creation of special authority (authorities) is necessary in accordance with the Recommendation number 2 of the Commission.
Theories alleging the insolubility of problems originating from cultural differences are particularly dangerous because they increase the feeling of racism and intolerance in the society.
The Commission finds alarming the increasing trend of the phenomena of instigating to intolerance, racial hatred.
In several countries mostly the Roma population is exposed to racist passions. It is they, who suffer most from prejudices and racial discrimination in different fields of social and economic life.
The increasing support of political parties pursuing xenophobe policy is alarming. It is also unfavourable that this exerts a negative influence on the rhetoric of moderate mass parties as well.
Racist and prejudiced way of thinking and behaviour continues to be present in the practice of authorities – including also the jurisdiction and police – while the governments proved to be unable to create the funds and procedures necessary for surmounting this problem.
So, this is the “distorting mirror” held up by the Commission to the European public opinion. And the following report is its domestic version. As it will become apparent from this report, that the above-mentioned trends are also noticeable in our country: from the point of view of the rights of minorities the year 2001 – unfortunately – fits in well with the processes outlined above and it wasn’t a successful year either.
There are long-continued issues in which no progress could have been achieved this year as well. Thus for instance the parliamentary representation of minorities is still unsolved; perhaps it already isn’t worth mentioning. However, considering legislation one of the greatest setbacks was the failure of amending the Act on minorities and the “goose-step” in the case of the draft Act on anti-discrimination. As far as the former is concerned, we find it particularly disquieting that provisions of the Act concerning the election of minority self governments remained unchanged. There is a serious danger that more serious abuses might take place in the coming local governmental elections in 2002 than those experienced earlier and this may discredit the entire system. The report analyses the events and tries to contribute to the pursuit of a way out.
One of the primary obligations of the state is to create the statutory environment necessary for guaranteeing not only the declared but also the actually exercisable right of equality and not only from constitutional considerations but also for reasons of both internal and foreign policy. The report endeavours to indicate the negative processes experienced in this field. The report particularly indicates that in spite of our efforts there is no substantial progress in this regard and even in spite of the fact that we have not only effectively participated in the codification work by elaborating our own draft widely supported by the committee set up for this purpose but also have undertaken to organise an international conference on this subject (we will give an account of the latter as well). Hardly can anyone detect improvement in the implementation of existing anti-discrimination laws either.
In harmony with the report on the European trends this report also demonstrates the unfortunate phenomenon of fomenting hatred by presenting legal cases and debates on the possibilities of acting against it. We welcome the fact that this time we were not left alone because we could count on the co-operation of the experts of the Ministry of Justice and the Office of the Attorney General and the judicious public of civil organisations.
This time we again deal with education in details focusing our study primarily on higher education. We find our experiences gained in the course of this and the tone and topics of the debates following our findings disquieting. Besides the positive reactions of soundly facing the danger we have unfortunately experienced the belittling of negative phenomena as well as reactions from a position of wounded pride in a derogatory sense, not even mentioning the extremist reactions. Perhaps it goes without saying that the number one party injured by discrimination and prejudice in the field of education (and elsewhere) continues to be the Roma minority and here we also correspond to the “trend”. In spite of undoubtedly observable efforts (scholarship system) the situation has not improved, on the contrary it has worsened.
We find the new phenomenon of rejecting our measures, recommendations, initiatives by the authorities, first of all by local governments more often – as the enclosed statistics demonstrate it - than before, particularly disquieting. We will also separately call the attention of Parliament to this dangerous trend.
Chapter I.
Minority self government system
1. Dilemmas of minority self government system and the failure of amending the Act on Minorities
Elections of minority self governments will take place this autumn for the third time. Considering this event, we have to disregard the limits of a traditional report and we intend to give not only an account of our activities but also to call attention to the danger of likely abuses in connection with the elections.
1.1. 2002 is “the year of elections”
In the report of the parliamentary commissioner for 1998 we have already discussed the anomalies we have experienced during the previous election of minority self governments in details. We have informed the Parliament on reports and concrete complaints received by us according to which several elected minority self government representatives actually don’t belong to the given community. Some of them were elected only because their name was first on the ballot-paper due to the alphabetic order of names. These representatives had no personal ties with the given minority and the only reason of their standing as candidates of this community was that it offered them a chance to win a mandate.
The normative basic principle of the Act no: LXXVII of 1993 (hereinafter: the Act) on the rights of national and ethnic minorities is the right of self-identity. As a consequence of the principle of the freedom of self-imposed identity the basis of belonging to a minority is not the opinion of the outside world but the voluntary, inherent commitment of the individual. That is why a statement of someone to the effect that he/she is a member of a minority community cannot legally be questioned. The current law on suffrage does not stipulate the mandatory belonging to a minority of those standing as candidates at the minority self government elections, consequently anybody may decide to try to win a mandate even by counterchanging the represented communities in each consecutive election period.
In our opinion it is unallowable that anybody might change cycle-by-cycle of elections his/her identity governed by political or economic interests because this is an unambiguous breach of law and it discredits the special minority rights.
In the interest of enforcing the constitutional right of minorities to self-governance we find it necessary that legislation should guarantee the exercising of active right to vote for members of minority communities by some sort of a technical legal solution. It also must be solved that those citizens should vote for candidates who identify themselves with the given minority.
Agreement has been reached between political decision makers and minority communities that comprehensive amendment of the legal material – and within this the regulation of suffrage – is necessary.
The Human rights, minority and religious affairs committee of the Parliament has set up an ad hoc committee in October 1998 for the preparation of codification. All parliamentary parties are represented in the ad hoc committee and the experts of national self-governments, the representatives of the ministries concerned and our office also contributed to its work.
Finally the bill has been presented - with considerable delay – to the Parliament on 12th November 2001, but it was not placed on the agenda.
Thus, unfortunately, in spite of efforts made in the past four years there is still no legal guarantee of preventing the repetition of anomalies experienced at the time of the previous election even to an increasing extent.
It’s an unwritten rule that conventionally the law on elections shall not be amended in the year of an election. However, under this circumstances we would support the idea that further harmonization should take place with the national self-governments and that Parliament should attempt to discuss and pass the bills before the coming local governmental elections in the autumn.
We are also unable to report progress in solving the parliamentary representation of minorities.
The committee set up by Parliament for a comprehensive review of the election system and for preparing its reform has separately analysed the possibility of the independent parliamentary representation of national and ethnic minorities. The committee has concluded its deliberations by stating that in issues necessary for a comprehensive reform of elections the accord among groups of the members of parliament ensuring a two-third majority vote necessary for the implementation of the basic aims is absent.
The Hungarian minority policy is putting off the solution of this issue of parliamentary representation since more than ten years and still it did not succeed to find one. This delay deprives domestic minorities of exercising one of their basic constitutional rights. At the same time we have to emphasise that the remedy of the existing negligence of the violation of constitution cannot merely be regarded as an “internal affair of minorities” since it is in the interest of the entire society that minority communities should adequately be represented in the work of the highest representative organ of the state, the Parliament. One possible way to do this is to elect minority candidates nominated by political parties. However, this sort of party representation – from the point of view of constitutionality - cannot compensate the parliamentary representation of minorities realised on the basis of their own rights and by applying special election rules.
1.2. Unanswered questions in connection with the autonomy of minorities
In the past decades substantial changes has been effected in the legal position of minority communities living in Hungary. As a first step taken in this direction was that the amended Constitution declares that national and ethnic minorities are constituent factors of statehood. Consequently, in accordance with this provision the legislation should have given them the right to administer the affairs concerning their communities, i.e. autonomy in a legal sense should have been guaranteed to them.
A “double-meaning” solution has been found of the problem of autonomy of the minority communities embodied in their independent duties and competence. Minorities do not live in blocks in our country but isolated and that is why the form of territorial autonomy well proved in other countries of Europe could not be realised. However, minority self governments had been created as the institutional guarantee of enforcing minority rights and on local level these are organically tied to the local governmental system of settlements.
It is our firm conviction that in the third election cycle of the minority self governmental system we have to achieve that the representatives could fulfil their duties in a clear, unambiguous legal environment and that their legal status should be arranged.
Minority self governments are the organs of self-governance of the minority communities vested with authority of a legal entity by public law. Accordingly it is a justified claim on their part to obtain financial support necessary for their functioning. Unsolved financing is one of the fundamental shortcomings of the minority self governmental system. The central state subsidy granted to minority self governments does not – or if so, then only at a minimal level – cover their operating costs. The amount of subsidy granted to each minority self government is the same but due to differences in the number of members in minority communities and in the duties performed just this equality leads to disproportion.
It is a welcome fact that minority self governments are more and more successfully participate in different tenders, still the majority of them are not able to organise events and launch programs without the financial support of the local governments of settlements. It is unacceptable that minority self governments depend on the “good will” of the settlements’ local governments because the state does not ensure the financial support necessary for performing their duties.
Due to the delay of amending the relevant Act several problems arise in connection with the functioning of minority self governments and current laws do not provide unambiguous answers to them.
According to complaints submitted to our office it causes problems in several places that the settlement and the minority self governments do not understand clearly the relationship between the two bodies. Certain settlement local governments do not regard the minority self governments as their equal partner and do not wish to cooperate with them.
Due to the coordinative position of settlement and minority self governments, cooperation plays a decisive role from the aspect of successful performance of their duties. At the same time statutory laws define only the possibility – in certain cases the obligation – of cooperation while the parties should collectively develop its actual substance.
A vital field of cooperation is the guaranteeing of the conditions of operation of minority self governments.
The relevant Act prescribes that the mayor’s office of a settlement local government is obliged to render assistance to the work of the minority self government as defined in its rules of procedure.
The Government Decree no: 217/1998 (XII. 30.) on the order of the operation of public finance specifies this obligation of the settlement local government by stipulating that upon request the office of the local government shall ensure the conditions of the operation of the minority self government.
It is a recurring problem that the settlement local governments are not aware their concrete obligations deriving from these provisions.
According to our position these provisions should be interpreted in a way that if the mayor’s office is poorly accommodated, the minority self government may only demand the ensuring of the minimal conditions necessary for performing its duties. However, if the organisationally separated sections of the settlement local government dealing with different types of official matters are functioning in separate rooms then the minority self government may justly expect to ensure separate premises for it as well.
The settlement local government is not obliged to grant financial support to the minority self government concerned but apart from this the cooperation is a legal obligation also at the time of approving the budget.
The other field of cooperation between the settlement and the minority self governments is connected with the performance of their duties.
The minority model defined in the relevant Act intends to create a cultural autonomy where the cultural and educational self-governance of minorities plays a central role. In this interest minority self governments may establish and maintain institutions – within their own competence and within the framework of available funds - in the fields of local public education, local media, safeguarding traditions and public culture.
When establishing the minority self governmental system the legislator has started from the assumption that these bodies will adequately strengthen and may take over the operating of the minority educational and institutional system along with sufficient state financing. Today it can be said that the minority self governments are still not able to perform this task.
Experience shows that minority self governments – first of all for reasons (legislation) outside their competence – are not able to take over the maintainer’s rights and they exercise their administration rights mostly via their sphere of competence in the field of decision making together with state or local governmental organs. Thus they have the possibility to influence the decisions of others by exercising their right guaranteed by law to comment on or agree with them.
However, the legal system doesn’t answer the question about the statutory sanctions a settlement local government should face in case of neglecting the right of co-decision making of the minority self governments.
We have to emphasise, however, that in our opinion it is not the solution that the minority self governments should take over tasks outside the scope of cultural autonomy from the settlement local governments. It is observable that some minority self governments want to perform duties not allowed to them by law, for instance they would like to take over the task of distributing social aid. This practice unambiguously violates law since minority self governments may not perform the duties of an authority.
We consider the successful accomplishment of the already started codification process of amending the relevant Act, the realisation of the minority self governmental autonomy, to vest minority self governments with independent duties by ensuring the necessary conditions as the most important aims of codification.
2. Control of the legality of the minority self governments
Our point of departure is that the minority self governments are legal organisations not exercising administrative authority directly and their basic task is to defend and represent the interests of the minority concerned and to promote their endeavours to self-realisation. Thus the minority self governments – as well as the settlement local governments - do not belong to the system of public administration; the organs of public administration may direct their organs and representatives only by legal norms, they cannot withdraw their competence, cannot directly modify or annul their acts.
The role of the state is to financially support the performance of duties of the local governments and to supervise the legality of their operation and within this framework to possibly prevent breach of law, or if such occurs to try to restore the lawful operation as defined in the relevant Act.
Chapter II.
Education as the strategic issue of the minority policy
1. Complaints in connection with co-decision right in the field of education
In creating the cultural and educational autonomy of minorities the co-decision right of minority self governments plays the leading role. This means that in issues also affecting the education of minorities the minority self governments themselves typically do not make decisions but influence the decisions to be made by the settlement local government. Therefore the enforcement and the correct exercising of the rights to provide an opinion or consent play an outstanding role in the field of minority education.
What are the most important forms of co-decision right ensured for minority self governments in the field of education?
Section (1), paragraph 29 of the relevant Act defines the right of consent of the minority self government: in issues of local education a decree of the settlement local government affecting its minority population as such is bound by the right to consent. The second section states in general terms that obtaining the consent of the minority self government is necessary for local governmental decisions covering also the education of minorities. The Act no: LXXIX of 1993 on public education (hereinafter: Act on education) includes the detailed exposition of this section: in the most important issues concerning the public educational institution participating in minority education the consent of the minority self government should be requested for their establishment, termination, transfer the right of their maintenance, approval and modification of their budget, modification of their scope of activity and approval of their organisational and operational rules. The Act on education also ensures a say for minority self governments in essential issues of education, namely the approval of the educational and pedagogical program, the evaluation of its accomplishment and also the evaluation of professional work in the institution are bound to consent.
Minority self governments have the right of consent in issues of appointment or dismissal of the head of a public education institution only if it is a so-called minority educational institution. According to section (6), paragraph 121 of the Act on education a minority educational institution prescribes is a public educational institution where the number of children participating in minority education exceeds a certain proportion (25%), the foundation deed of the institution includes the task of minority education and the school de facto performs it.
If the maintainer of the school is not the local government, the minority self governments have only the right to express their opinion before a decision is made on the termination, reorganisation, changing the task, naming, fixing and modifying the budget, appointing and dismissing the heads of institutions educating in the language of the minority and in Hungarian.
In 2001 – as well as in the earlier practice of the parliamentary commissioner for the rights of minorities – we have come across with several complaints in connection with the right of consent and the right of providing an opinion.
The minority self government of a settlement has turned to the minority ombudsman with its complaint that although the settlement local government has received the opinion of the minority self government in writing in connection with the person of the headmaster to be appointed the representatives at the meeting were not informed about it prior to decision making. A video recording also proved this.
The position taken by the ombudsman was the following: although the right to provide an opinion is weaker than that of the consent since the content of the opinion is not binding the settlement local government but its importance lies in the fact that by influencing the decision making process it may motivate the decision maker to reconsider and thus it might have an impact on the decision. Therefore it is indispensable that the body of representatives should actually be informed about the content of this opinion. For this reason the ombudsman for minority rights has taken the initiative to call the attention of the settlement local government concerned to ensure in the future the de facto enforcement of the right of the minority self government to provide an opinion.
In 2001 the most frequent complaint in connection with the guarantee and exercising of the right to consent was that the settlement local government has not requested the consent of the minority self government in issues bound to consent or did not take its content into account.
In these cases the ombudsman has informed the settlement local governments concerned that a decision by disregarding the right to consent is a violation of law. The right to consent binds the content of the decision therefore it means a veto. In these cases the initiative of the ombudsman proposed to discuss the issue again and to secure that the consent is obtained. In those cases when the initiative yielded no result, the ombudsman recommended to the competent office of the public administration that it should call upon the body of representatives by a notice on legal conformity to revoke its decision. [3]
We have received several complaints in connection with the replacement of headmasters of minority schools. It was a recurring phenomenon that when the local government was unable to reach an agreement with the minority self government concerning the person of the headmaster, it has appointed a public servant within the framework of a one-year assignment, but this time without asking for the consent of the minority self government.
The Government Decree no: 138/1992 (X. 8.) includes the detailed rules of assignment of the heads of public educational institutions. On this basis a three-round procedure ensures that a public educational institution should under any circumstances have an appointed principal. According to the main rule, in the case of a decision of the representatives’ body concerning a minority institution the consent of the minority self government is indispensable. If the first round of competition has not produced result a public servant of the educational institution may be appointed without open competition to perform the duties of headmaster for a term of not more than one year. In the absence of such assignment the duties of directing the public educational institution should be performed in accordance with the order of replacement defined in its organisational and operational rules.
In these cases the ombudsman has informed the representatives’ body that they should also ask for the consent of the minority self government in the case of a second round. Any other legal interpretation would make automatic evasion of the right to consent possible.
2. Discrimination in the field of education affecting Roma children
Complaints received by our office in 2001 and submitted expert opinions and assessments in connection with elections held in the field of minority education prove that disadvantages of Roma children in education and the number of cases of discrimination connected with this did not decrease in the past period. These have a negative impact on the marks of Roma children and may even lead to a complete failure of schooling.
2.1. Forms of discrimination
On the basis of the published results of research and experiences gained from cases investigated by our office the most frequently occurring phenomena of discrimination in the course of the education of Roma children are the following:
2.1.1. Segregated education of Roma children as a result of selection evolving among schools.
a) Discrimination due to settlement segregation
As a result of spontaneous migration processes in the 1990’s and the prejudices of non-Roma population the separation of dwelling-places of Roma population has increased. The proportion of Roma population is continuously increasing in depressed, tiny villages and decaying districts of cities. As a result of changes in the composition of the population the younger, non-Roma families often leave the settlement, which leads to changes in the age-group composition of the population. The number of Roma school children is increasing and therefore more and more Roma children attend local schools.
b) Segregation due to enrolment of non-Roma children to another school.
This is also connected with the settlement segregation and generally it can hardly be separated from the process described in point a); it just underlines it. It is expedient to deal separately with this problem due to its complexity. While in the previous case the moving of non-Roma population has led to the significant increase of the number of Roma children, here the change of schooling proportions cannot be explained by this reason only.
Unfortunately, in certain areas the following phenomenon becomes more and more observable: when the number of Roma pupils increases in the schools due to the process of migration, the non-Roma families tend to enrol their children to another school.
It can be established, that the proportion of Roma pupils in these schools increases substantially to a greater extent than it would be justified by the changes taking place in the composition of the population. Thus the families do not yet leave the settlement, only they enrol their children to another school.
In several cases the local governments and the schools actively take part in developing such situations, deferring to the pressure of the local non-Roma population. This is how “Roma schools” had been established in the neighbourhood of the segregated dwelling places of Roma population generally under poor infrastructure and personnel conditions. The other schools operating in the settlement carefully ensure the admittance of only a few Roma children to their schools by referring to different reasons.
3. 1. 2. Separation of Roma children on the basis of selection within the school
Selection within the school may lead to the development of several forms of segregation in education. The essence of the matter is that they organise separate classes, groups for Roma children on the basis of different “professional reasons”.
· These are for instance the classes, groups organised on the basis of closing up type or other special curricula. General features of the classes, groups organised this way are the lower level requirements, worse quality of pedagogic work, lack of differentiating and developing pedagogical knowledge. That is why in many cases just the effectiveness of the basic function of the classes, groups organised in such forms becomes questionable.
· It may also result selection if only non-Roma children can attend special classes organised for children with “better abilities” while mostly Roma children attend the so-called “normal” classes. It also constitutes separation, discrimination when the school prescribes ab ovo lower requirements to Roma children due to their allegedly weaker abilities.
· The operation of separated classes, groups on the basis of and with reference to the Roma minority education program may also lead to harmful discrimination. We have indicated the seriousness of this problem in several cases. In the interest of the earliest possible change we have analysed in details the shortcomings of the professional implementation of the Roma minority education program and its legal regulation in our last annual report and in one of the sub-chapters of our study in the field of higher education.
Earlier the minority education program was called the form of education for uplifting the Roma minority suggesting a possible substantive interrelation between the minority existence and the necessity to uplift them.
The Ministry of Education has renamed this form of education in its Decree no: 13/1999 (III. 8.) without amending the regulation.
According to the MKM (Ministry for Culture and Public Education) Decree no: 32/1997 (XI. 5.) on issuing the guidelines of kindergarten education of national and ethnic minorities and of the public education of national and ethnic minorities, the Roma minority education program should include two components: on the one hand the development of minority self-understanding, the cultural education and on the other hand – differing from minority education – the development of socialness, communication, teaching-lines and nurture of talent aimed at reducing the possible disadvantages.
2.1.3. Special (auxiliary) public education of Roma children
In 1998 we reviewed the problems of the public education of Roma children within the framework of a comprehensive study. We have established that the procedure leading to the re-routing children to schools with different schedule or to institutions for the education of defective children is suitable for the harmful discrimination of Roma children. The high proportion of Roma pupils educated in special classes may negatively influence their future chances, in choosing a career and their position in the labour market. It seldom occurs that a pupil can achieve to be transferred from these classes to “normal” classes of the elementary school and they have even less chance for receiving secondary education. According to studies on segregation in education the number of special (auxiliary) classes – parallel with the ever-increasing enrolment ratio of Roma children – has continuously increased from the beginning of the 60’s until the end of the 80’s. Since then it has somewhat decreased which might be connected with the democratisation process of the country and also because the education administration – in part also as a result of our study – deals more and more emphatically with this problem.
2.1.4. Declaring Roma children as private students
It is a new phenomenon – and generally even the families of Roma children doesn’t regard this as a harmful discrimination – when a problematic child is declared as a private student and is excused from regularly attending school.
According to current laws one may become a private student in two instances. One follows from section (1), paragraph 7 of the Act on Public Education, which rules that the obligation of compulsory education can be met by attending school or as a private student depending on the choice of the parents concerned. Generally children with eminent abilities become private students on the basis of the choice of parents.
The other instance of declaring children as private students typically occurs in cases of handicapped, tongue-tied or otherwise deficient students or inadaptable students being deficient in behaviour, or learning, or when a child continues his/her studies as a private student on the basis of the expert opinion of the educational adviser for reasons of pedagogy or expedience. [4]
According to research dealing with the already mentioned segregation in education the reasons of exemption in the case of non-Roma children are mostly connected with reasons of health while in the case of Roma children they referred to problems of behaviour, over-age, pregnancy or marriage. In many cases the intention of getting rid of problematic children lies behind the exemption from attending school thus the possibility of becoming a private student may become a method of exclusion. Typically the children declared to become private students would hardly have a chance of further study or of securing a suitable position in the labour market.
In summary we can establish that several forms of discrimination penalize the Roma children in the course of their education; the discrimination resulting open, institutionalised segregation as well as the indirect, concealed harmful discrimination.
The selected cases well demonstrate the most frequently occurring forms of harmful discrimination applied against Roma children in schools.
The complainant, a county coordinator of the National Roma Self-government has submitted a complaint making a grievance of the fact that in the elementary school of a settlement Roma children in the first and fifth grade are being thought in separated classes.
We have received information from the media that in an elementary school they are discriminating Roma children in guaranteeing the material conditions (meals, use of toilet, etc.) of education and in the practice of education-organisation. On the basis of this report we have ex officio launched an investigation.
The ministerial commissioner for the rights of study has initiated joint investigation in a case where possibly not only the rights of education but also the right of minorities had been violated.
According to the complaint the children in a countryside kindergarten had to use separate “Roma” and “Hungarian” blankets; and even the organisation of the Roma minority education program have resulted segregation.
The chairman of the Roma minority self government of a settlement has submitted a complaint to the ombudsman to the effect that during a biology class anti-gypsy statements were made, among others that “gypsies have a specific odour”.
Considering our initiatives and proposals made in concrete cases we list below the following areas where it would be necessary to take further measures in the interest of preventing and eliminating the harmful discrimination of Roma children.
2.3.1. Acceleration of the anti-discrimination codification process
According to section (1), paragraph 70/A of the Constitution the Republic of Hungary guarantees the human and civil rights of every person staying on its territory without any discrimination with regard to race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status. The paragraph pronouncing the prohibition of discrimination is basically “doctrinal type” also according to the interpretation of the decision no: 64/1991 (XII. 17.) made by the Constitutional Court, the guaranteeing of which by objective, institutional protection is the obligation of the state.
According to section (1), paragraph 8 of the Constitution it is the duty of the state not only to respect but also to protect the basic rights.
According to the terms of the decision no: 64/1991 (XII. 17.) of the Constitutional Committee the statutory and organisational conditions necessary for the enforcement of the individual basic rights should be developed by the state and in the course of that it should also take its tasks in connection with the other basic rights and other constitutional tasks into account.
Although the prohibition of harmful discrimination is included in laws important from the aspect of our topic, but the same laws don’t guarantee their effective enforcement.
However, no Act is available that would include the detailed rules of procedure to be applied in case of suspecting discrimination and the scope of sanctions. Currently there is no legal consequence of the separated education of Roma children leading unequivocally to discrimination either.
The draft bill on the “Fight against racism and xenophobia and for securing equal treatment” prepared by us deals with discrimination in education and the consequences of the discrimination in education in a separate chapter. This – in harmony with the above-mentioned decisions of the Constitutional Committee – ensures the legal, institutional and organisational conditions of the fight against discrimination in education. Considering these, the anti-discrimination codification activity started last year should be accelerated.
2.3.2. Reconsideration of the substance of the regulation of Roma minority education
As we have already stated in several cases the part of Roma minority education aimed at strengthening identity and assisting the protection of minority self-identity should be separated from the uplifting type programs for the improvement of chances of Roma children to learn. In the interest of eliminating educational disadvantages affecting Roma children the uplifting educational programs should be organised in a way that they would not result any form of segregation. However, separation may also not result that the Roma minority should have fewer possibilities in the field of education for asserting their right to freedom of undertaking identity.
The current system of financing is not suitable for the transformation of Roma minority education in accordance with the above.
According to Act no: CXXXIII of 2000 on the budget of the Republic of Hungary for the years 2001 and 2002, the legislature appropriates within the framework of the Roma minority education an auxiliary contribution in the amount of 29.000 HUF in 2001, and 33.000 HUF in 2002 per child taking part in the program. According to the Act on Budget in elementary schools the auxiliary contribution to day-care and to courses assisting the preparedness of handicapped students may be appropriated in the amount of 15.000 HUF/head in 2001 and 17.000 HUF/head in 2002. This cannot be claimed if a Roma student participates in uplifting type talent-care education within the framework of Roma minority education. All these encourage the local governments to ask – if possible - for a higher amount of auxiliary contribution to Roma minority education in the case of Roma students. They also realise the uplifting type educational programs within this framework since they cannot ask for other types of auxiliary contributions (e.g. special courses, remedial instructions, etc.) for the same handicapped student. Thus the reconsideration of the background of financing is an absolute necessity for a substantial transformation of regulation. However, the Roma minority should not get into a worse position than the other national minorities as a result of the amendment of provisions relating to financing; and their support later should not be less than it is now in accordance with current laws.
2.3.3. Development of multicultural and intercultural education
The development of a more adoptive multicultural environment might play a significant role in preventing and eliminating discriminatory phenomena in education. According to the majority of education experts the Hungarian school system doesn’t prepare the students for accepting the variegation and heterogeneity of the society and for understanding the otherness from any aspect of different groups of people. Greater emphasis should be laid on the education of tolerance toward minorities in the activity of educational institutions. In many countries there are already developed traditions of multicultural education. Wider adaptation of these would be necessary in our country as well. Our study on higher education has pointed out the shortcomings of preparing educators in this direction.
The development of multicultural education contributes to the evolvement of a more receptive and open society that accepts otherness better. According to legal regulations the intercultural education is a form of minority education and its aim is to enable the participants or non-participants of minority education to get acquainted with the culture of a given minority within the framework of jointly organised facultative courses.
The current definition of intercultural education unduly narrows its accessibility and the scope of participants since it excludes the students of those schools from the possibility of getting more deeply acquainted with the culture of minorities living in our country where there is no minority education. In the interest of their more effective and broader organisation it would be expedient for instance to revise these types of programs in order to make it possible to support them by ensuring auxiliary contribution in the Act on Budget.
Finally, we also have to mention a few tasks from the possible set of instruments of state action that would considerably help to prevent the different forms of discrimination in education: for instance the privileged treatment of the tasks of ensuring quality in the control and realisation of the programs of institutions educating large groups of Roma children; broadening the scope of preferential and development subsidies; prevention or rollback of settlement segregation by means of settlement development, economic and employment policies. These tasks can successfully be accomplished only by the cooperation and active participation of the competent ministries, other organs, settlement local governments and minority self governments. However, these serve the prevention and elimination of harmful discrimination only if they are realised with the cooperation of Roma and non-Roma population by mutually harmonising their interests and demands.
Chapter III.
Once again about the rhetoric of “hatred speech”
1. The “meeting points” of the minority commissioner with “hatred speech”
In the first six years of his functioning the parliamentary commissioner for the rights of national and ethnic minorities has also received complaints in which mostly Roma people complained that natural persons living in their neighbourhood, moreover even officials (policemen, local government representatives, mayors, etc.) has made racist, anti-Roma remarks.
It also occurred that local papers published reports or articles from authors openly expressing their animosity towards the Roma community or attached blame to persons belonging to the Roma minority responsible for certain events creating displeasure for the increase of crime, or for committing certain concrete crimes.
In these cases the minority ombudsman has little room for manoeuvre. For if one or more concrete persons are defamed by statements of facts suitable for defamation or by defamatory expressions then it is up to those concerned to decide to submit - within 30 days following the date of the injurious action - a private motion to the competent authority asking for establishing the criminal responsibility of the perpetrator for the indictable offence of slander.
If, however, these slandering, defamatory, denigrating statements are not directed against one or more concrete persons but against a defined group of people or community, the minority ombudsman may only investigate whether the suspicion of the crime of incitement against a community – falling within paragraph 269 of the Penal Code – does or doesn’t exist.
Although the parliamentary commissioner can take a stand in the issue of suspicion – especially in the case of well grounded suspicion, but he cannot make the decision necessary for starting a criminal procedure (by ordering investigation). Thus in case the parliamentary commissioner observes that somebody makes public statements against any national, ethnic, race or religious group or population which are possibly suitable for inciting hatred against this group, he has no choice: he is obliged to lodge a complaint on the basis of paragraph 24 of the Act no: LIX of 1993. We list this type of actions in the category of “hatred speech” in the practice of the parliamentary commissioner as well as in common talk regardless that the publicly committed incitement takes place verbally, in writing or by other pictorialness.
This report of the parliamentary commissioner is being prepared under such circumstances that following the elections in April 2002 already the members of the new Parliament will get acquainted with its content.
It is a well-known fact – and we shall deal in detail with this later on – that serious codification work has been started at the end of the current parliamentary cycle in the interest of correcting the paragraph 269 of the Penal Code and of course following the completion of this work only the new Parliament can amend this Act.
We should like to provide an overview of the phenomena, its theoretical and practical approach to members of the legislature – and especially to the new representatives who perhaps did not directly face the problems of hatred speech – that hopefully may contribute to the successful performance of their legislatorial tasks.
2. What is the “hatred speech” and why does it endanger society?
It’s an old, perhaps trivial statement that the spoken word has power. In the course of the history of humanity they used the power of words already at the beginnings for communicating positive or negative opinions: just think of the declarations of blessing and excommunication within the framework of several times determined rites, ceremonies.
Perhaps the so-called “hatred speech” – in its extreme form – can best be related to the erstwhile institution of excommunication when it was the aim of this act to exclude someone or some people from a certain community (church), thus the aim of this act was explicitly disfranchisement.
The hatred speech today may also realise disfranchisement, but anyhow it is aimed at curtailing certain right.
The criminal law and statutes on misdemeanour also prohibit the verbally committable violations of law by using the aggressive, insulting, intimidating force of words. If for instance the negative speech – depending on its desired object to be obtained –
a) attacks the dignity, authority, reputation, social standing of a concrete person (or even a legal entity), then a case of defamation or slander might be realised;
b) contains a threat against the life, physical safety, health of a concrete person, then the offence of dangerous threat might be established;
c) is capable for inciting disturbance or disquiet on the site of a dangerous situation in a larger group of people, we may speak about the crime of scare mongering;
d) it targets the identity, dignity of communities, social groups the members of which are not interlinked by a concrete task or some sort of membership relation then in principle the crime of incitement against community might be established.
The phenomenon known as “hatred speech” in sociological literature and in the legal and political publicism is mostly linked to the case outlined in point d) although undoubtedly the majority of defaming, slandering concrete persons may belong to the category of hatred speech.
Partly the incidence of birth (gender, national-ethnic status, sexual disposition, social situation) plays a role in the emergence of the criteria of forming groups and partly it can be regarded as a result of conscious choice of status (religious, political, world outlook) made in the course of socialisation.
The “set of values” of the dignity of the community as a protected subject of law cannot be listed in full: it includes the widely known features characterising the community concerned (individual distinctive features, customs, outstanding past events and symbols of the history of the community).
These are frequently targeted by different attacks: for instance widely publicised defamation, use of humiliating expressions realise the case of vilification and manifestations capable for inciting hatred belong to the category of “incitement”.
Common characteristics of attitudes insulting dignity and belonging to the category of hatred speech are the following:
a) They cause an emotional injury by making it more difficult for the members of the minority concerned to freely identify themselves with this minority and to regard his/her “otherness” as a value and not a “sin”, or an abnormal condition,
b) They have a paralysing, intimidating power, thus they hurt the general feeling of security of the members of the community concerned,
c) They induce and intensify passions against the minorities in social groups where either the anti-democratic, excluding attitude is part of their day-by-day behaviour, or they are committed to ideologies, political programs the final aim of which – admittedly or covertly – is to finish with the minority labelled as enemy, to bring its right to existence in question, to isolate or forcibly assimilate them,
d) They intensify the spread of prejudice which does not tolerate rational argumentation,
e) Following adequate persuasion they legitimatise a “poisoned” public life, a method of public speech, naturalizing in the public opinion the intolerant mentality, the political aspirations unable to accept the democratic institutional system and eventually proceeding to extremes.
Thus broadly speaking it can be established that those are using hatred speech who publicise a fact or value judgement about a given community (or a representative of a community) in a way that it is suitable for intimidating the members of this community or for creating a hostile, excluding environment for this community.
The insult to dignity is inseparable from the constitutional value called public order in terms of law. Neither a law on, nor a uniform judicial definition of public order – as an unconfirmed legal concept – can be found in the Hungarian legal system, while the chapter on crimes against public order of the current Penal Code includes ten titles of this types of crimes. This subject is also included in the law on indictable offences since several conclusions of facts – also within the chapters on crimes against public order – may also be listed in the category of injuria committed against public order.
The Penal Code describes this concept as follows: “The calm social atmosphere - where the respect for the lawful order, mutual respect, respecting each other’s personality and justified interests rules – is an important condition of the balanced development of the society.”
Public order is a category reflecting the current state of social consciousness: in a constitutional state it means not only that the jurisdictional, interest protection and danger preventing activity of the national and local public administration successfully functions but also that public administration doesn’t hinder the endeavours to assert individual and community interests and self-expression. Naturally, the so-called basic rights of communication also belong to this category and their undisturbed exercising can also be regarded as a measure of the presence of confidence of the public.
Public order – as the internal, psychic condition of a sate of security – embraces several dimensions of human life. We may describe this phenomenon in most general terms, that it is none other than the reflection of a series of different categories of security in social consciousness. Not only the security in criminological sense, but also the feeling of the so-called social and protective type of security is a part of the public order.
Public order means not only the awareness of being protected by the public power from injuria and danger and the confidence in the possibilities of enforcing law and interest, but also its strong dependence on the public actions of the authorities.
Public order is one of the important conditions of the existence of a democratic state of law and order and it expresses well-arranged situation of internal policy and social coexistence. Public order is a constitutional value covered by the obligation of the state to protect it, thus the use of the means of criminal law is generally neither unnecessary nor disproportionate.
Since almost half a century the practice of criminal law has tried to define the concept of the abstract and concrete endangering of public order first of all in connection with the crime of ruffianism: according to this grave disturbance of public order generally occurs when indignation and scare disadvantageously influence the public order and the general feeling of a large number of people or the behaviour of the perpetrator causes panic or scare concerning many people.
Thus a grave disturbance of public order – as a result of criminal action – requires that as a result of a dangerous situation the indignation and scare should increase to such an extent that it affects a large number of people, for instance significantly and disadvantageously influences the peace and public feeling of the population of a village or a district of a city or the act of the perpetrator causes panic or scare affecting many people.12
Thus public order includes:
a) the awareness of being free from danger in criminological sense,
b) the awareness of the social, economic and protecting type of security,
c) the awareness of the fact that public administration doesn’t hinder the enforcement of individual and community interests and “self-realisation” endeavours which are not prohibited by law,
d) confidence in the lawful and expert functioning of the representatives of local and national power,
e) that motives and impact of locally and nationwide publicised statements, conclusions, i.e. the current common talk are free of hatred.
3. Special responsibility of public figures
There is an old saying reflecting the wisdom of people: “what matters is that who said it and not what he said.” In our case it is particularly true since it’s well known that the communication of public figures, the content and style of “public talk” has normative power and represents a cultural example and it infiltrates unnoticed into the everyday life of small communities, amplifies or disavows determined values, behaviour, and in addition it offers positive or negative example for everyday conflict treatment (within this for the given method of disputes).
Thus the exemplary impact of current public talk is also valid to its distorted form, the hatred speech: the chilly and calculated rhetoric - in many cases far from being roughly inciting – may find a fertile soil in the “lower” dimension and it is able to influence the strength and direction of the passions of groups dissatisfied with their social status.
In general terms, we can say about the statements of members of the economic, political and cultural elite13 – both on national or local level – which regarding their consequences are capable for causing indignation, alarm or even “mobilisation” in a community, that
a) they influence (incite) public opinion to a significant extent,
b) they may bring about massive losing, withdrawal of confidence in the “official society”, in the entire “power”,
c) the “poisoned public life” may cause negative psychic symptoms demonstrable even in the case of the individual members of a most strongly attacked community,
d) they have a normative power: sooner or later they will create, legitimise the negative examples of public appearances based on the well known logic of everyday belief, that if they “up there” are allowed to behave like this, we can do the same even more so.
In addition to the hatred speech used by the elite, - i.e. “the hatred speech coming from above, or induced from above” – a strong impulsive form of speech led by passion, primarily thinking only in categories of “us” and “them” including ample choice of excluding, anti-minority stereotypes and attitude, is the so-called hatred speech “below”.
Summing up what has been outlined above, what is the real danger of hatred speech?
Considering its content, the unsaid assumption behind the rhetoric of hatred speech is that it is possible to create such a “natural”, “normal” condition of society, where
a) either there is no place at all for the attacked minority,
b) or its existence is only conceivable in a segregated form excluded by the majority, and by confinement of their rights,
c) or their complete assimilation is necessary.
The different intolerances existing within the society are differently interpreted by different political, ideological approaches.
The “solution” of national socialism” (Nazism) is the most extreme one: the radical getting rid of the minorities, the genocide. In a society based on racist policy and ideology the intolerance is expressed by segregation, while the conservative liberalism realises a constraint of assimilation. In general, the state socialism doesn’t acknowledge the latent xenophobia, or intolerance against minorities in the society; the answer of a society based on this type of policy is the forced negation of this problem while the answer of nation state liberalism to the same problem is the restriction of immigration.14
Considering its result and impact on society, a serious danger emerges when the hatred speech “induced from above” and the same “below” meets and feed each other and as a result of that sooner or later they will find partners for replacing words by actions.
4. Problems in connection with conclusion of fact related to incitement against a community
The judicial conclusion of fact of the crime of incitement against a community included in paragraph 268 of the Penal Code has a history written partly by the legislator and partly by the Constitutional Court but it is impossible to review it within the framework of this chapter. Decisions no: 30/1992 (V. 26.) and 12/1999 (V. 21.) of the Constitutional Court have abolished the punishability by means of criminal law of certain types of negative opinion – the so-called “vilification”.
The Constitutional Court has also determined the limits of rightful exercise of opining and the freedom of press and has pointed out the forms of manifestation of hatred speech, that justify the application of the sanctions of criminal law.
According to the Constitutional Court: within the framework of opining and freedom of press the constitutional protection of instigation to hatred would be in irresolvable conflict with the political arrangements and scale of values expressed in the Constitution and with the constitutional theses relating to the democratic rule of law, to the protection and acknowledgement of the right of people to equality, equal dignity and relating to the prohibition of discrimination, the freedom of conscience and religion and to the protection and acknowledgement of national, ethnic minorities.”
Thus the key concept of the Constitutional Court is the “instigation to hatred” which is included in the paragraph 269 of the Penal Code by using the expression of “instigate to hatred”.
The Constitutional Court also provided a detailed explanation concerning the content of the words “hatred” and “instigate”. According to this: “hatred is one of the most extremist negative and intense hostile passion. Who instigates also excites, revolts and encourages hostile behaviour, and hostile, damaging activities against a certain person, group, organisation or measure.”
The Constitutional Court has accepted the legal interpretation – developed at the turn of the century - in connection with paragraphs 171-172 of the Act no: V. of 1878 (Csemegi Codex) according to which the expression of “instigate does not mean the expression of a certain unfavourable and insulting opinion, but it means the sort of refractory fulminations that are capable for exacerbating the passions in a larger mass of people to such an extent that produces hatred and might lead to disturbing the social order and peace.”
Thus according to the stand taken by the Constitutional Court the basic constitutional right of the freedom of opinion may be constitutionally confined by means of criminal law if the perpetrator of instigation to hatred is aware of the fact that his/her behaviour is capable for inciting hatred and his act actually endangers the public order: “the passion instigated against the group threatens the honour, dignity (and in extreme cases also the life) of the members of this group and restricts them in exercising their other rights by intimidation…”
Unfortunately the restraint elaborated in the decision of the Constitutional Court has further been tightened by the publication of the legal case no: 165 o the Supreme Court in 1997. The Supreme Court has stated, that “the realisation of the legal case of instigation to hatred against the community that is directed to arouse hatred which turns to active activity, i.e. it means active hatred, incitement. Who instigates to hatred, incites others to active hatred.”
Although the individual decision15 of the Supreme Court is not binding like other statutes of law, it is an undeniable fact that it still influences the application of criminal law, having an impact not only on the legal interpretation by the courts but also on the law application work of prosecution. It is for this reason that concerning the criminal trails initiated by the parliamentary commissioner for minority rights the investigation is repeatedly rejected by referring to the aforementioned decision of the Supreme Court.
In this regard the substance of legal reasoning is well illustrated by the decision of a district office of prosecution in Budapest rejecting to commence investigation on the basis of our accusation and contains the following – in our opinion meaningless and even contradicting legal interpretation of the decision of the Constitutional Court - argument:
“The content of the published article as the subject of the accusation, due to the grouping, the method of presentment, and the unallowable generalisation of the stated facts, are suitable for inducing hostile feeling and arousing hatred, however, they don’t reach the level of instigation, since it doesn’t incite to or instigate active hatred. And in the absence of the element of statutory conclusion of fact the reported act is not a criminal act…”
The ad hoc decision of the Supreme Court in 1997 and its publication in the “Court Decisions” (abbreviated: BH) has de facto made the conclusion of fact under criminal law as included in paragraph 269 of the Penal Code inapplicable.
Considering that ad hoc decisions of the Supreme Court also orientate the application of criminal law there is no real chance for achieving that the courts should establish the “instigation to active hatred” character of instigating acts belonging to the category of hatred speech, therefore in this domain we cannot expect a decision to be made on uniform regulation either, at the same time a form of behaviour actually endangering a society – which the legislator originally ordered to sanction by the means of criminal law – may not even be considered as an offence.
5. Limits of the freedom of opinion
The final limit of the freedom of opinion – according to the decision of the Constitutional Court made in 1992 – is just the “hatred speech” that it is already not the public order, as an abstract, general entity it damages but – in statistical average – it emotionally affects the individual members of the community and is capable for mobilising certain groups to realise anti-social aims and to achieve their aims by the use of force.
The Constitutional Court has several times stated that the right to the freedom of expression of opinion protects opinion regardless of its content of value or truth. The freedom of expression has only external limits until it is not in conflict with such a constitutionally defined limit; the possibility and fact of expressing opinion is protected regardless of its content.
Accordingly, the individual expression of opinion and the public opinion is developing according to its own rules and in correlation with these the possibility of individual opining on the basis of increasingly broader information enjoys constitutional protection. In the free communication – states the Constitutional Court – there is a place for every opinion, be it good or harmful, pleasant or disobliging, particularly for the reason that the qualification of an opinion itself is also the product of this process.
Within the scope of the freedom of expression the Constitutional Court did not differentiate explicitly between a statement of fact and a value judgement. The fundamental goal of the freedom of expression is to guarantee the possibility of forming the opinion of others by an individual and convincing others about his standpoint. Therefore the freedom of expression generally includes the freedom of all types of communication regardless of the method and value of communication, its moral quality and in most cases also its content of truth.
Communication of a certain fact itself may qualify as an opinion, since the circumstances of communication may also reflect an opinion, i.e. the basic constitutional right to express opinion is not limited only to value judgements. However, when defining the limits of the freedom of expression it is still justified to differentiate between value judgement and the communication of fact: for instance the difference between the cases of slandering and defamation.
Fact is not in sharp contrast to value judgement in the dimension of used language either, where the possibility of restricting the freedom of expression by means of criminal law (instigation) is separated from the abusing, humiliating expressions, the use of such goes “only” with the abstract endangering of public order and discredits just the slanderer in the eyes of the public opinion.
Of course, the basic question is that where is the limit? Today in Hungary it is not considered unlawful if somebody publicise racist views in a way that his/her act on the one hand is not directed against specified persons and on the other hand it is not of an instigating type. It is justified to raise the question: if somebody does it several times with greater publicity and furthermore he is an exemplary, respected personality in the eyes of certain social, political groups, will not this “quantity” change into “quality”?
At the same time we can find several expressions among the distortions of common talk the content of which is not directly instigating, doesn’t encourage violence, they don’t even include abusing, humiliating expressions but still it is a figurative language far in excess of the everyday content of communication: the sign of “don’t buy from a Jew!” in the display window of a book store is not simply an excluding type, anti-Semitist expression of opinion but – considering the historical, cultural background – a part of a specific type of speech covering a hidden content where the threatening power of the untold message is greater than the threat of publicly expressed intention of the perpetrator.
Reason and emotion are not so far away from each other as it is accepted and almost taken for granted by the Constitutional Court and the domestic practice of criminal courts: the “chilly instigation” posing in the mask of scientism and value-neutral communication – i.e. expressing hatred, contempt or a kind of “supremacy” – can have a more lasting effect on an intellectual environment and thus its negative social impact is at least as dangerous as a lousy anti-minority hate campaign with the exclusive intention to influence “primary” passions.
6. Dilemmas of the dispensers of law
In the case of judging the instigating character of a given expression we come across with the paradoxical situation that a dispenser of law has to neglect at least four possible definitions while it is unavoidable to take them into account.
First he/she has to put aside his/her personal world outlook, scale of values, secondly he/she must regard the deliverer’s motives, the chief intentions of the message immaterial from the aspect of qualification, thirdly, since it is a case of immaterial act, he/she cannot make the conclusion of fact dependent on the social affect of the communication and finally he/she has to neglect the moral, emotional harm suffered by the members of the minority concerned due to this communication.
Then how does the dispenser of law decide? His/her task is to consider the objective content of the expression and its general judgement in the society as the basis of correct evaluation. In support of this – as an analogy – let us recall the statements of judicial practice developed in connection with the most frequently occurring verbal violation of law, defamation.
According to the court “the capability of an expression or statement of fact for defamation should not be judged on the basis of the subjective evaluation of the insulted party, but on the basis of establishing whether the manifestation under the given circumstances is objectively capable for hurting the sense of honour.”16
The requirement of bringing out the “objective content”, the objective capability for arousing hatred means for the dispenser of law that it has to make a decision on the basis of the judiciary interpretation of paragraph 269 of the Penal Code,
a) is the given verbal or written manifestation objectively capable for arousing hatred, i.e. for creating, inducing hostile passion, o the other hand
b) does the content of the manifestation – the grouping, the method of demonstration, generalisation of facts, the social judgement of the past history in connection with the manifestation – reach the level of instigation, i.e. does it encourage active hatred – quasi as an emotional preparation for future use of force – or not.
The conclusion of case can be accomplished by a single word, inscription, within the framework of a given literary or scientific work, also in comic, ironic or even objective forms. The expression including value judgement with reference to the language, characteristics, culture, customs, history of the minority concerned in contemptuous, degrading, humiliating and vulgarly generalising forms, or suggests such, cannot be regarded as a conclusion of fact in itself.
The “vilification will turn to “instigation” when certain expressions or the entire manifestations unambiguously provide ground for drawing conclusions that
a) represent the minority concerned to be a kind of enemy17, an „alien group” that should be hated,
b) fundamentally question the right to existence of the minority concerned, or their right to equally participate in social life,
c) closely connect the minority concerned with the negation of values generally accepted by the society, or with the affirmation of negative values generally rejected by the society.
The everyday meaning of the content (suggestion) of the manifestation, the rank of the communicating forum, its social legitimacy, the frequency of similar manifestations and the reaction of the society to this manifestation together – on the basis of the independent consideration of the dispenser of law – shall decide whether the instigation character of the “verbal crime has actually been realised.
Thus it is impossible to arrive to a grounded legal standpoint without an investigation performed by the dispenser of law in order to find out what kind of alarm reactions might be experienced among the members of the majority and the minority society – depending on the extent of their being informed and concerned in the case – and what kind of counter actions do they intend to take, furthermore to find out what size and trend of aggressive instincts are released or strengthened in the wake of the given manifestation. In case the dispenser of law would abandon this investigation, it so happens that he would abandon the applying of the test of “clear and present dander” prescribed by the Constitutional Court.
As an unambiguous consequence of the above a negative value judgement, a condemning opinion or even the passionate criticism of a given minority manifestation does not belong to the category of perpetration behaviour.
There is another problem with the ab ovo contradictory test of “clear and present danger” requiring result for immaterial conclusion of fact and that is its inconsistent character in the practice of the Constitutional Court. Let’s raise the question: under what consideration would the use of symbols of tyranny according to paragraph 269 of the Penal Code pass this test? Is it necessary to establish that the use of symbols involves a direct danger of arousing or inducing hostile passions? Our answer is a categorical no: the use of symbols in itself – i.e. to express identity with extremist political theories in this way realises the conclusion of fact.
7. Hatred speech in the media
As we have already several times referred to it above, hatred speech - in the full sense of the word – is addressed to the public and when the codifier construed the judicial conclusion of fact of instigation against community according to paragraph 269 of the Penal Code it was not by accident that he included the perpetration “with wide publicity” among the elements of conclusion of fact.
Thus hatred speech is common talk: its object is always to affect wider public. Therefore the truly vital form of manifestations aiming at intimidating a certain group of people, or creating a hostile, excluding environment against them.
We have received several complaints in 2001 because the dignity of a national or ethnic minority. Had been offended in the media. A part of this articles, radio or TV programs was “only” biting, offending, taunting, unjustifiably humiliating in relation to the community, but certain acts also corresponded to the social dangerousness of “instigation to hatred” to be sanctioned according to criminal law. We should like to illustrate below with some typical examples the hatred speech in the media hurting the dignity of the community.
7.1. The “case of Pánd”
“Gypsies are killing, cruelly torturing and outlaw the Hungarians in Pánd” – stated an article published in a weekly.
Briefly summing up in a simplified manner the statements of this article the readers could embrace the situation in Pánd as follows:
· Three hundred well organised mafia type criminals (gypsies) ready to commit horrible acts of cruelty are terrorising the population of the village;
· The horror-stricken, unorganised, defenceless majority (the “good Hungarian citizens”) due to lack of unity is at the mercy of the gypsy community.
If we don’t consider the aim its author intended to achieve we even might say that it qualifies as a feat of journalism: three defenceless, expelled women desirous of peace, among them a talented, good student, a thirteen years old girl became the victims of gypsy criminals. The author has illustrated the crimes he described with sentimental, perturbing, and naturalistic photos by “proving” with these on the one hand the authenticity of the story and on the other hand forced, aroused the sympathy of people feeling great empathy with the “Hungarians in Pánd” and in addition he encouraged to arouse hostile passion, indignation, self-defence reactions against the gypsies.
We have received detailed information on this matter from the competent investigating authorities and have unambiguously established that the alleged crimes described by this author did not happen, or that the homicide mentioned in the article as a fact did take place but ten years before this article has been published and within circumstances that ab ovo excluded the suspicion that the ethnic status of the perpetrator has played a role in the perpetration of this criminal act. Considering the undoubtedly instigating tone and impact of this article the parliamentary commissioner for minority rights has initiated criminal trial due to well-grounded suspicion of instigation against community under paragraph 269 of the Penal Code. The Prosecution rejected to launch an investigation by referring to the absence of a criminal act since the “instigation” as an element of judicial conclusion of fact was missing this time as well.18
7.2. The practice of a radio program well-known of its extreme right-wing affiliation and its condemnation
A similarly suitable media for realising hatred speech is the public radio too. A journalist known of his intolerance on the basis of his public TV appearances in a notoriously right-wing, sometimes anti-Semite, and anti-Roma style radio program has cited from a letter allegedly written to a Roma politician by somebody. Even the title of the commentary suggests its content: “Horror in Dob Street – is four kind of otherness enough for self-defence in the middle of Budapest?”
The author of the letter established casual nexus between a statement made by the known Roma politician exonerating the perpetrators of illegal occupancy of apartments and the massive increase of illegal occupancy since then and also with other acts of crime. The writer of this letter bring up the case of an attempted theft of Roma persons by means of breaking in his home to justify the increase of criminal acts. In the read out letter and in the following commentary the editors of the program made it clear: we should be afraid of gypsies because they are criminals and the healthy self-defence reactions of the society justify even the use of gun.
The broadcaster closed his commentary by the following statement: “The writer of this letter is unfortunately right and the atrocities have increased to such an extent that the criminals overpowered the police.”
In the case described above a citizen’s complaint had also been received by the competent editor in chief but the following statement of the editor rejected it: “there was not a trace of a most brutally anti-Roma instigation directed against a person in the letter and the commentary (radio program).”
The parliamentary commissioner for national and ethnic minority rights has turned to the Complaints Committee of the supervisory authority Radio and TV requesting to establish that the mentioned program has violated the provisions of Act no: I. Of 1996 (on Radio and TV).
The section (2) paragraph 3 of the relevant Act prescribes, that “The provider of programs should respect the constitutional order of the Republic of Hungary, its activity may not violate the human right and may not be capable for arousing hatred against persons, gender, peoples, nations, national, ethnical, language and other minorities and churches an religious groups.”
According to section (3) of the same paragraph “The program service may not be directed to the open or covert violation, exclusion of any minority or any majority, their presentation, condemnation on the basis of racial considerations.”
According to the section (1), paragraph 4.: Information on domestic and foreign events, debated issues of pubic interest should be many-sided, factual, up-to-date, objective and balanced.”
Section (1), paragraph 23 of the Act prescribes in the case of public service program provider and public program provider, that “they should particularly respect the dignity and fundamental interests of the nation, the national, ethnical, language and other minorities.”
Upon our initiative the Complaints Committee has established the violation of each law listed above, moreover, it has established in another decision that not only in this individual case, but the style and spirit of the entire radio program mentioned above has violated the Act on media.
The decision of the media authority in connection with the radio program under review has established the following: “it regularly violates the statutory requirements of universality, objectivity and balance information. The program is characterised by presenting topics in a very biased and partisan way, it is sometimes openly and in some cases covertly discriminative against the minority it intends to held up to public obloquy, the most conspicuous characteristic of editing the reports that they always tend to the same direction and thus it makes impossible that the public should receive objective information.”
7.3. Our cases in connection with criminal reports
Coupling criminal acts and Roma origin in the media may be regarded as atypical violation of law. If such a news item by referring to police source creates the impression of official information, it is particularly capable for strengthening the undoubtedly existing social prejudice, which is looking for perpetrators of crimes mostly among gypsies.
The article published in a daily on 9th August 2001 under the headline “Roma persons attacked policemen” is a good example of this. (The author of the article indicated that the sources of information are policemen.)
According to this news item Roma persons manhandled two policemen during their legal action. The journalist found it necessary to highlight in the headline and in the first sentence of the article that the attackers were Roma people while it became unambiguously clear from the content that there is no demonstrable connection whatsoever between the ethnic status of the ruffians and the acts committed by them.
What can the parliamentary commissioner for minority rights do in these cases? He can choose – almost routinely – from a not very broad selection of possibilities and take one of the following measures:
· Call upon the head of the competent police authority to refrain from including the ethnic status of the perpetrators in their official information when it is irrelevant from the aspect of the committed crime;
· Warn the competent commander that law provides an all-round and strict protection of rights to personal data, in particular data referring to national and ethnic status;
· Ask for the proper briefing of police personnel who are entitled to make official statements since the Data Protection Regulation of Police19 allows police information only to a limited extent necessary for restoring public peace and satisfying the primary need for information by the public with regard to personal data managed by the police and even in the cases of providing information on “other circumstances”. Since too many details – as for instance the naturalistic demonstration of brutality – may have an effect contradicting the purpose of information: the report may also disturb the public order;
· Ask the Ethic Committee of the Hungarian Journalist Association to define its position in this case;20
· Initiate – if the disciplinary responsibility of a member of the police force is raised – to establish accountability.
The police investigated the matter described above but according to their findings the information on the Roma origin of the perpetrators did not come from the two police officers mentioned in the article. However, neither them nor the Minister of Internal Affairs made use of the possibility to demand press rectification: the readers remained under the impression that the published and injurious news item relating to the origin of the perpetrators and increasing the bias of society was based on official information. We believe that in similar cases it is the moral duty of the policemen concerned, or the Minister of Internal Affairs to take action.
In these cases the absence of asserting individual rights causes the unequivocal violation of public interest, therefore we find it important to consider the drafting of a bill for the purpose of eliminating the constitutional anomalies caused by criminal reports.
The arbitrary and unnecessary indication of minority status in cases of concrete act of crime results not only personal injuries. Particularly when the a summary, generalising, unfounded and deliberately despiteful link up of an entire community with a certain act condemned by the entire Hungarian society can unambiguously be established. A press communiqué that connects an entire community with the perpetration of criminal acts and names several of its members as criminals and separates them from the “good Hungarian citizens” insults – beyond the injury suffered by the members of the community – the dignity of the entire community as well.
These cases became a phenomenon in the Hungarian media. Therefore in our mind it is an important task of the state to reconsider, whether the Hungarian legal system is suitable for protecting the society against common talk capable for disturbing the thought, the general condition of people and the public order. We also find it necessary to answer the question whether our legal system protects equally the individual and the community.
Since nascent hatred against a group is the emotional basis of discrimination, calling the equality of men in question. Since the attack against equality, the immanent element of human dignity, and arousing hatred is at the same time is also an attack against human dignity, one of the corner stones of our legal system and legal culture.
However, the freedom of expression and the freedom of press can be restricted in the interest of ensuring the equality and dignity of people.21
The decision no: 34/1992 (VI. 1.) interprets human dignity as a “general personality right”. Dignity “embodies a general value and its guaranteed protection constitutionally cannot be made dependent on the evaluation of certain creative components of this personality, instead its protection (against the state and others) should be ensured generally and equally with regard to the substantial elements of the personality on the level of statutory regulations.”
If the law should guarantee the protection of the rights of individuals to name, exterior, healthy environment, property, personal data, etc., then similarly effective protection should be provided to the individual communities as well.
Does the state comply with this requirement or is the current legal sanctioning of hatred speech adequate?
As we have already mentioned it in details above, an insult to the community’s dignity is not punishable under paragraph 269 of the Penal Code; criminal law deals only with cases of slander, or defamation, in cases of infringement of individual rights or exceptionally in cases of simultaneous infringement of the rights of several persons.
Although it is obvious that only a natural person may have human dignity, but exceptionally criminal law provides protection against acts derogatory to the value judgement, appreciation of society to legal entities and also to collectives without legal capacity but having collective social obligations and by meeting their obligations might lay the foundation of their social appreciation.
According to the comment of the Penal Code, the possibility to belong to the protected circle is determined by the tasks performed, for instance the different chambers, creative communities, working parties, economic associations may belong to this circle.
Whereas different groups – first of all minority or other communities distinguishable on the basis of a kind of criterion (e.g. Roma people, Jews, students, inhabitants of housing estates, relatives, pensioners, employees of a business sector) – generally don’t constitute a collective enabling them to become injured parties in cases of slander or defamation.
7.4. Alternative possibilities of legal protection of the community
According to the Constitutional Court the sanctions of the Civil Code threatening with high amounts of non-property compensation are more suitable for restricting abuses of the freedom of expression and press than the means of criminal law.22
But actually, will the civil law be capable for ensuring the function of an effective protection? Is the offer of the possibility for asserting individual rights suitable for repairing a widely publicised infringement of law; will the people be able to utilise this possibility? If so, will the individual compensation mean adequate reparation for the entire community considering that these communities are not legal entities? The answer is no to these there questions.
Those who suffered – as members of a community - injury to their reputation, human dignity by the given act may also claim the protection of civil law. Therefore in this case it is not necessary to form “a well defined circle” on the basis of “common performance of duties” of those who suffered this injury, as it is the case of applying a sanction of the criminal law. In the given case they can initiate a lawsuit but – as in the case of criminal procedure – only for the injury to their personality rights.
We are aware of two statements of claim where the plaintiffs referred to the injury of their dignity as a result of insults against Hungarian Jews instead of referring to personal injury suffered due to their belonging to this community. Thee statement of claim submitted in connection with the above mentioned article published in a weekly also refers to the human dignity as a form of general personality right and the plaintiff feels that his right to sue is justified in spite of the fact that the article under review did not mention the plaintiff by name.
7.5. How should “hatred speech” published in the press be treated?
If a communication insulting the dignity of a certain community – e.g. a national or ethnical minority – is published in the press then in principle the Hungarian law provides the following protection against it:
a) if a communication in the press instigates hatred, the crime of instigating against a community can be established (as we have indicated, hardly any criminal proceeding is in progress on the basis of paragraph 269 of the Penal Code);
b) if it is stating or spreading a fact capable for defamation or uses an expression directly referring to such fact, the concrete person concerned by the fact, or a concretely identifiable (“enjoying social appreciation”) person can submit a private motion of slandering (under criminal law;
c) if the press communication puts a false complexion on the published, or spread facts or true facts, then – regardless that it is true what has been published or not – the named or otherwise identifiable harmed party may request their rectification in a way to demonstrate separately the untrue facts, the deceptively presented facts and the true facts of the published information (rectification);
d) if the press organ concerned does not comply properly with the requested rectification, a civil lawsuit may be initiated in a legal case of press rectification;
e) if facts affected by press rectification also involve the infringement of reputation or honour than the person who was harmed may also initiate a civil lawsuit in a legal case of personality right;
f) if the journalist uses an expression in the given article capable for defamation in connection with the performance of work, public assignment or activity serving public interest of the person concerned a private motion in the offence of defamation may be submitted;
g) if an article includes opinion, criticism, evaluation in an unjustifiably insulting, humiliating or illogical way the harmed party may also initiate civil lawsuit.
Another person may not act on behalf of the harmed person without the approval of the same (motion of public interest): nobody can deprive someone of the right of self-determination, the right to independently decide about his motion.
The party interested in the legal debate has the constitutional right to appeal to court, however, this right – similarly to the other freedom rights –also includes the right not to make use of this right.
The concept of the motion of public interest (actio popularis) is known in the Hungarian legal system but due to the above-mentioned limit of the right of self-determination it can only be used exceptionally and within a very narrow circle.
We note, that only two of all motions of public interest are directly attached to the defence of personality right.23 Since the legislator did not regard the dignity of a community to a public interest in need of protecting it also by motion of public interest, the majority of such procedures protect economic-property interests.
Summing up, it can be established that journalist behaviour directed to arouse hatred is oriented not only by “eye-catcher” and the marketability of the paper. It should also correspond to the political standpoint of the editor, reduction and the owner it has to serve the political views of the regular readers as well. We are convinced that behind the typical use abusive language about “Gypsies/Jews” in certain articles, radio and TV programs there lays a specific rationale, the sober consideration of advantages and risks. An eminent component of this is the fact that manifestations insulting communities without legal protection, arousing hatred against them can legally be attacked within a very narrow circle.
It can be established that the Hungarian legal system only indirectly ensures the protection of the dignity of communities if the insult has also caused individual harm to personal interest, and the party concerned can achieve its punishment by private motion, its reparation by initiating a civil lawsuit.
The motion of public interest doesn’t protect directly the dignity of a community either, that is why the basic right guaranteed in paragraph 70/K of the Constitution - stating that “claims originating from violations of basic rights and objections against state decisions made in connection with the performance of obligations may be asserted in court” - is not applied in all cases.
7.6. Solution proposed by the minority commissioner
We concluded on the basis of problems outlined above that the most expedite and effective solution of the current, anomalous situation – also concerning or rather threatening constitutional rights – is to amend the Penal Code.
Due to certain cases, which received great publicity in 2001, it was known to us the Attorney General has initiated to review the provision of paragraph 269 of the Criminal Code and the Minister of Justice did not raise any objections in connection with this proposal of the prosecution urging codification.
It was obvious that the parliamentary commissioner for minority rights should also participate in the preparation of the codification work of the Office of the Attorney General and the Ministry of Justice.
Since we are convinced that the conclusion of fact of an act of crime defined in paragraph 269 of the Criminal Code has become inapplicable in practice, it doesn’t fulfil its social function and as a result an anomalous situation developed also affecting constitutional rights we have acted again on the basis of paragraph 25 of the relevant Act: we have elaborated a proposal also including a normative text and submitted it to the human rights, minority rights and religious affairs committee of the Parliament.
In the course of elaborating our proposal we have taken the conclusions of fact of the Criminal Codes of some competent Western-European countries into account. Namely, in most countries of the European Union not only the arousing hatred, invitation, or instigation to hostility, harmful discrimination, but also name-calling, vilification and slandering against national, racial, religious or national groups, and acts hurting the human dignity of members of communities, or groups are ordered to be punished.
We have already mentioned that the Constitutional Court of the Republic of Hungary did not find the restriction of freedom of speech and freedom of expression by means of criminal law constitutional and annulled the statutory laws on the punishment of vilification. Compared to this, even the mere negation of the holocaust is considered as an act of crime in Germany and Austria and they also include the vilification of communities in the concept of instigation against community.24
In the countries mentioned as examples we meet with precise, dogmatically accurately elaborated legal solutions, which order the punishment not only of the forms of behaviour explicitly arousing hatred or vilification, but also the producers, disseminators of publications wit such content and even those persons who in any manner support propaganda activity aimed at arousing racial, national and ethnical hatred.
The most comprehensive regulations – also adapting the set of concepts of anti-discrimination law – is offered by the Criminal Code of a non-EU country, namely Switzerland. Article 261 of the Swiss Criminal Code includes the following conclusion of fact relating to “negative” discrimination: “who publicly invites to hatred or negative discrimination against a person or group because of their racial, ethnical or religious status, or who publicly disseminate a system of such ideas that abuses or slanders those belonging to a race, group of people, or religion, moreover who verbally, in writing, by way of pictures, movement, assault or in any other manner organises, support, or participate in the vilification, negative discrimination of those belonging to a race, a group of people, or religion by humiliating human dignity, negates, belittle or try to justify genocide and other crimes committed as a result of this, who denies to provide services accessible to everyone to somebody or to a group because of their racial, ethnic or religious status, should be punished by imprisonment or fine.”
On our part, we don’t see either principal or practical difficulty hindering the incorporation of a judicial conclusion of fact in the criminal law, at the same time we endeavoured at the time of preparing our draft to ensure that the least possible – but absolutely necessary - changes should be made in the new text of paragraph 269 of the Criminal Code as possible.
[1] Activities of the Council of Europe with relevance to combat racism and intolerance.
[2] Annual Report on ECRI’s activities covering the period from 1 January to 31 December 2001.
[3] Unfortunately, it has been encountered more than once that the representative bodies of local governments „massively” persist in maintaining their decisions made by neglecting the right to consent or providing an opinion in spite of acknowledging the apparent violation of law. However, in these cases we have to see that the relevant Acts do not include any sanctions (legal consequence of nullity) relating to local governmental decisions made by violation of law.)
[4] See: section (1), paragraph 120 of the Act on Public Education and also section (2), paragraph 23 of MKM Decree no: 11/1994 (VI. 8.) on the operation of educational institutions.
12 See for details: BH 1993. 407.
13 Naturally not only the representative of the current governing political parties but every political force and factor belongs to the political elite that potentially might acquire a share in the political power.
14 See: „Whose picture it is? Hatred and politics” by György Csepeli, 2002. Budapest
15 It refers to the decision of the Supreme Court – well known from the press - in connection with the activity of the Vorldnational People’ Rule Party.
16 See: BH 1981. 220.
17 „The enemy picture is false construction suggesting a permanent danger caused by a supposed enemy (the alien group) and this danger can only be eliminated by defeating, liquidating the enemy. Means of talking about the „enemy” are the means of simplification: „dichotomy”, „stereotyping”, prejudicing, the exaltation of their own group, … and spreading falsehoods, the unexpected introduction of a topic or element unfitted for the generally accepted form of speech and sending the means of ambiguity into action.” See more in: „Hatred and Politics”. Budapest, 2002.
18 The prosecuting authority has explained in in the reasons of of its decision that the article is undoubtedly capable for arousing hostile passion, hatred, but it doesn’t reach the level of instigation. (If active hatred is the condition of establishing instigation as it is „expected” by the Supreme Court and Prosecution follows it in a servile way, even an inexpert reader may raise the question, why should we wait for the occurrence of mob-law or hurling Molotov cocktails when it can be hardly denied that the „author” of hatred speech wants just this.
19 See for details: §45 of the instruction no: 19/1999 (VIII. 26.) of the National Police Headquarters.
20 The Ethic Committee of the Hungarian Journalist Association has also established in connection with two articles published in quick succession in the daily that they contradict paragraph 2 of the Ethical Code and the joint basic ethical principles of the Hungarian Journalist Associations, because they have violated personality rights.
21 The International Covenant of Civil and Political Rights, and the Agreement on the protection of civil rights and fundamental rights of freedom also makes the restriction of the freedom of expression and the press possible.
22 See: Decision no: 30/1992 (V. 26.) of the Constitutional Court. ABH 1992. 167. 178-180.
23 Section (3), paragraph 85 of the Civil Code, and Pp. 342 § (1).
24 For instance: according to paragraph 130 of the German Criminal Code „someone who instigates hatred or demands to apply force against a part of the population and hurts their human dignity by this in a way to disturb public order” is punishable. It should be emphasized that this paragraph of the German Criminal Code separately regulates the case instigation is realised by „circulating , producing, acquiring, storing of document, and conveyance of them or making them accessible to those under 18 years of age(!).
Chapter IV.
Misadministration
(Anomalies in the public administration, law enforcement and other organs.)
Introduction
The parliamentary commissioner for the rights of national and ethnic minorities regularly receives complaints to the effect that the complainants have negatively been discriminated in the course of different official procedures by the “local representatives of public administration”, perhaps they were ignored, or roughly treated, or that they don’t experience any sign of willingness to help.
In the course of investigating these cases it is a primary consideration for us to prove or exclude the fact of actual discrimination, but at the same time we also can’t overlook the anomalies – which might be listed to the category of bureaucracy in the bad sense of the word - unfortunately still frequently occurring in the practice of public administration, and police.
We should like to introduce below some cases indicating dysfunctional operation of public administration and other authorities in order to prove that in spite of the undoubtedly positive changes since the change of system undesirable elements are still present in the public administration including also this time the administration of official matters by the local governments.
1. The right of the freedom of choosing domicile in the light of the rights of children
A county coordinator of the National Roma Self-government has forwarded a complaint on behalf of five children and their parents raising grave constitutional injuries attracting also the attention of the media.
The complaint can be summarised by two interlinked conclusion of fact:
· The local notary public did not allow the complainant and his family to check-in to their own house;
· T the same time the local schoolmistress rejected to enrolment of their schoolable children due to the absence of registered permanent address.
The ombudsman has started an investigation in this case and has asked the notary public of the settlement to inform him. According to what the notary has said, this family moved to the village sometimes in 1998 and the owner tried to check-in only at that time. The notary public then justifiably rejected this request because of the absence of the permit to move in and use the real estate.
However, according to the complainants they have tried several times from the beginning of 1999 – already possessing a provisional permit of use – to check-in their home address in the mayor’s office but their request had always been refused. We didn’t find any written trace of the requests of the complainants to check-in their address.
The complaint includes that the mother tried to enrol her schoolable children to the local grade school. However, the schoolmistress rejected her request by the following reasoning:
“With reference to our personal interview I beg to inform you that I am not in the position to enrol your children to may school because neither you nor your children have a permanent or provisional address of domicile in our village.”
Following the investigation the parliamentary commissioner for the rights of national and ethnic minorities has initiated that the board of representatives of the village:
1. should investigate the functioning of the local system of the protection of children, and the responsibility of those operating this system – thus particularly that of the notary public, employees of the children’s welfare service and the schoolmistress – in connection with the illegal disadvantages suffered by these children;
2. the local government should pay increased attention to the enforcement of the right of the population of the settlement to legal safety with particular attention to the information of clients and guaranteeing the rights to legal remedy;
3. should solicit the notary public to adhere to the rules of procedure of public administration;
4. the local government should compensate – as far as possible – the complainants and their children for the material and moral damages inflicted upon them;
5. should initiate negotiations with the complainants about the means of support of and the guarantees of their safety and rights by the local government in case the family still wishes to settle down in the village;
6. and if the family doesn’t wish to return to the village, the local government should consider and review the methods of rendering assistance to solving the housing problems of the complainants and in utilising the real estate.
In addition to these, the ombudsman called upon the notary public of the village to fulfil his duties stipulated by the relevant Act in case this family still wishes to settle down in the settlement.
(We haven’t received yet the reply of the board of representatives and the notary public.)
2. Complaints in connection with correction
The proportion and character of complaints concerning the organisation, institutions and employees of correction has not changed since our last report. It is a matter-of-course since the legal background has not changed considerably and improvements of the conditions of prisoners are apprehensible only by a few.
The complainants in their letters complained about their – presumed unlawful – separation fro reasons of security and the rejection of their requests to suspend their confinement and informed us about their objections relating to keeping contacts and the visiting time. Thus, summing it up, it can be established that they complained about the treatment and not about the conditions of inadequate accommodation. Each complainant has expressed the opinion that the objectionable circumstances may be related to their belonging to the Roma minority.
The majority of the complaints proved to be unfounded. We have established in a single case that a decision within the competence of the warden concerned was not inevitably relevant but there was no accurately definable breach of law and we did not experience circumstances substantiating the suspicion of an injury of minority right.
3. Complaints about the work of police
We have frequently experienced in the period under review that the complainants objected the procedure of the police because they were taken in custody, although it is the competence of the court to order the detaining somebody in custody. We have informed each complainants with due thoroughness on the restricted possibilities of the parliamentary commissioner in taking measures and on the possibilities of legal remedy.
A correspondent complained about the procedure of police because the court has terminated the detention lasting for three month of his common-law wife and other three suspects but the detectives had again arrested them. According to the complainant its reason was that they are Roma while the other party interested in this criminal case is “Hungarian”.
We have established in the course of the investigation that the police authority did not play a role in this event, probably the reason of the complaint was that the court of first instance and the court of appeal judged differently the given criminal case and accordingly they made different decisions on ordering detention.
The Prosecution has filed a motion against the three suspects and proposed to prolong their detention in custody. According to the stand of the Prosecution it is a well-grounded suspicion that they have perpetrated the crime of blackmail on the basis of the following conclusion of fact:
One of the suspects and one of the persons later becoming an injured party found a savings books payable to bearer in the amount of 10 million HUF in the course of demolition of a dwelling house. The person later becoming an injured party took them home and his wife collected them.
He handed over an amount of about 600 thousand HUF from the 10 million to the other participant of the demolition work by saying that the value of the savings book they found was 1 million 200 thousand HUF. After months the later suspect has come to know that his partner with whom together they pocketed the savings books has bought a house for the price of several million HUF. He decided that the amount paid for this house originated from collecting the savings books therefore he – together with his two partners – gravely threatened the injured party that in case he will not give them another 1 million HUF they will seriously manhandle him or his family members. To the effect of the threat the injured party has given them in two occasions altogether 511 thousand HUF but on the second occasion the police arrested them.
The prosecution proposed the prolongation of the detention of the suspects on the basis of well-grounded suspicion of the committing the crime of blackmail by serious threat. According to the court the well-grounded suspicion of blackmail cannot be established. The legal subject of the crime of blackmail is on the one hand the protected right of property possessed by its lawful owner or user and on the other hand the freedom of human action. Injured party can be the person whose property is damaged by the perpetrator. According to the standpoint of the court the amount of the disputed money had come in the possession of the injured party as a result of a criminal act therefore he had no protected right against the suspect who is his partner in the criminal act. Those who commit a crime together are not entitled to the right to property in relation to property stolen by them and consequently they are also not entitled to legal protection under criminal law. The court has rejected the prosecution’s motion requesting to prolong the detention of the suspects in custody.
The prosecutor appealed the judgement and the court of appeal has found this well grounded therefore ordered to take the suspects in custody again. According to the argument the standpoint of the court of first instance is erroneous, when stating that the injured party is not entitled to legal protection in relation to the money which came into his possession as a result of criminal act, and that in the absence of protected object of law criminal act can not be realised between the suspects and the injured party. The court of appeal has stated that the crime of blackmail the crime of blackmail is committed by the use of force of threat for the purpose of getting illegally hold of property and as a result the property of the injured party is damaged. According to the court it doesn’t make any difference whether the property owned or possessed by the injured party is legal or illegal. In the case under review the money came illegally into the possession of the injured party but in spite of this the acquisition of such money by use of force or threat for the purpose of getting illegally hold of property is suitable for establishing the criminal act of blackmail. Therefore in the case of the suspects there is a well-grounded suspicion of committing the criminal act of blackmail. Reasons for detention in custody are unchanged therefore the court decided to order the detention in custody.
We have informed in details the complainant on the events and that the police only participated in executing the court order.
In those cases when complaints were made for having been maltreated by members of the police, we – in accordance with the already developed practice – forwarded the complaints to the competent chief prosecutors who, upon our initiative, had taken the measures prescribed by the act on criminal procedure. As a matter of fact, the number of complaints because of maltreatment has dropped in comparison to those of the previous years.
A part of the complaints objected the criminal procedures and official activities of the police. Among them the violation of law embodied in omission should be stressed, which later might have resulted an erroneous foundation for the stand taken by the prosecution or the court.
According to a complainant the members of the police authority omitted to order the psychiatric examination of his son in spite of the fact that he requested it several times and handed over medical documents to the detectives certifying the his son is a defective child since birth. He also alleged that policemen manhandled his son, made references to his minority origin and was forced a confession from him by these threats. The prosecution brought in an indictment on the basis of the objected police procedure, and the court – without trial – passed a verdict sentencing the defendant with 2 years of probation.
Upon our request the Attorney General reviewed the relevant documents of the competent office of prosecution. According to his information he established that the investigating authority was not able to find satisfying corroboratory evidence the guilt of the suspect.
As a matter of fact the suspect pleaded guilty at the time of his interrogation but did not make a confession, therefore no admission is available, and the statement of guilt cannot be qualified as evidence.
Considering all these, it can be established that the accusation was unfounded and consequently the court verdict establishing the guilt of the defendant is unfounded as well.
The suspect did not acknowledge the verdict and asked for a trial. Therefore the chief prosecutor of the county has instructed the competent office of prosecution to take part in the trial and withdraw the unfounded charge. According to the Attorney General the psychiatric examination of the suspect is unnecessary, because the withdrawal of charge in the case of guilt means an adequate position.
In order to investigate the other allegations included in this complaint the Attorney General has forwarded it to the county office of prosecution requesting to order the investigation.
Later he informed us that the court has annulled the criminal case of theft against the suspect on the basis of the withdrawal of the charge by the prosecution and its verdict to that effect has in the meantime come into force.
In addition he forwarded the decision of the county office of prosecution to us, on the termination of the investigation of the criminal act of third-degree interrogation. According to this decision the perpetration of this criminal act cannot be established and result cannot be expected from the continuation of the investigation either. Our comment on this case is that the argument part of this decision convincingly backs up that the criminal act cannot be proved, but it also shows that in the process the suspect was only able to and willing to speak with the active participation of his legal counsel. Therefore the members concerned of the policy should have also experienced the signs of defects of the suspect therefore it is assumable that the responsibility for omitting to take the necessary measures in the interest of the psychiatric examination of the suspect falls on them.
4. Matters in connection with the right to social security
The right of citizens to social security is stipulated by paragraph 70/E of the Constitution as follows: “Citizens of the Republic of Hungary have the right to social security, in cases of old age, illness, disability, widowhood, orphanhood, unemployment they are entitled to provision of the necessities of life.”
In most cases the basis of the right to social security include benefits provided by the state under substantive law which guarantee the generally adequate level of supply. The forms of social support are regulated by the Act no: III. of 1993 on social administration and social benefits. The object of the Act is the creation of social security. In this interest it defines the forms, organisation, terms of the forms of support guaranteed by the state and the entitlement and the guarantees of their enforcement. Simultaneously it authorises the local governments to establish also other benefits supplementing the benefits guaranteed by law. However, the forms of aid within the competence of local governments are always limited by the available funds, which are always less than needed. Since client in the majority of their letters complain that when in their difficult situation they turn in vain to the local government for help because their requests are regularly rejected.
In all cases we have established in the course of investigation that although the complainants receive support but it is not sufficient and in case of lack of regular income it doesn’t ensure the livelihood of the family. However, the parliamentary commissioner cannot investigate the material sources of local governments and their use, thus in the case of complaints concerning insufficient social support constitutional anomaly cannot be established. But it can be established that the central budget appropriates increasingly less funds for mandatory social political tasks of the local governments. The number in need of social support is increasing in the villages and even in smaller towns and the amount allocated for this purpose remains unchanged or it is even less than the year before, therefore the amount of benefits occasionally provided to applicants is more and more insignificant. Especially members of the Roma population feel that their situation is getting worse because of their ethnic status and they blame the local governments because it doesn’t make any effort to create jobs providing a guaranteed livelihood. In general, our complainants would like to work because they know from their own experience that the amount of aid – although sometimes it means regular income – does not guarantee their livelihood. Only few public projects are available, more would be necessary because this means the only possibility of income in the villages and smaller towns.
It is a recurring complaint that the ask public work from the local government in vain, because due to the limited number of jobs determined by the labour centres only a few can live with this opportunity. In addition, they don’t know the process the result of which they could be employed by the local government, therefore they think that the employment exclusively depends on the goodwill of the local government and assume that they are neglected because of their Roma origin.
A good example of this is the letter of a representative of minority self government of a settlement in which he complains that the local government doesn’t guarantee work for the Roma inhabitants but to make matters worse it employs non-Roma workers of other settlements for continuous construction works.
The investigation has established the unfoundedness of this allegation, because this local government employs annually a significant number of Roma public workers and pays particular attention to deal with the problems of these people being in disadvantageous situation: it tries to create different jobs for them by participating in tenders.
The complaint exemplifies that in many cases there is no exchange of information even between the settlement local government and the minority self government, the information of Roma representatives is not ensured, cooperation is missing.
We have experienced this in a case when the local chairman of a minority organisation has asked for the help of the parliamentary commissioner because he thought that four families in the settlement were left out from the debt consolidation in connection with OTP (National Savings Bank) loans exclusively because of their Roma origin.
According to findings of the investigation there was no discrimination, these families were not entitled to support. Yet, the local government helped them but in another form. The local government have taken over a part of their debt, because the board of representatives felt that these families should not be adversely affected just because they have regularly paid the prescribed instalments and that is why they were not entitled to participate in the debt management. If the complainant had adequate contact with the leaders of the local government or at least tried to get information on the decisions of the board of representatives, the investigation of the parliamentary commissioner would have been unnecessary for becoming aware of the support received by these families.
However, it is also necessary that the local governments should treat the minority self governments as partners and should involve them in the preparation of decisions and regularly inform them on matters concerning the minority they represent. Because in the absence of this the minority self governments are not able to effectively perform their interest protection duties.
A considerable number of complaints received in the topic of social security dealt with residing but closely connected with the deterioration of social security, unemployment, ruin. The right to housing, residing is an integral part of the right to social security guaranteed by the provision of paragraph 70/E of the Constitution although it doesn’t mean at the same time entitlement under substantive law. Creating social security makes always the active participation of the state necessary, without this the realisation of social security is inconceivable.
It characterises each complainant that in absence of effective state support they are unable to create their own homes, but in many cases the maintenance of their dwelling means an insoluble problem: they face the threat of eviction due to being in arrears with rent and public utility fees.
All of them wait for the help of the local government, but this is completely absent or it is insignificant. Although the several times amended Act no: LXXXVIII of 1993 on the rent for dwellings and premises and on the regulation of their alienation arranged the issues of housing management and the local governments also passed their decrees prescribed by law but this in itself – due to lack of funds – doesn’t solve the problems. In the past years the housing stock available to local governments has decreased to an insignificant level, few new flats was built or none at all, the local governments at best can only offer ground-plots with utilities – in a limited number – at a preferential price to those who want to build homes. Only few people may make use of this possibility, and that is why complaints are only made about the lack of ground-plots in case a family has some cash and would like to solve their housing problem by using state subsidy.
There are many who simply ask a flat from the parliamentary commissioner, others would like to achieve that the parliamentary commissioner would order the local government to “allocate” a flat or perhaps to purchase the house chosen by them. Some expects the renewal of their real estate by the local government and some would like us to prevent eviction. These are problems not constituting a violation of a right of the complainant and although the right to social security has apparently been violated the parliamentary commissioner cannot help because he cannot investigate the use of the material sources of the local governments. Neither can assistance be rendered by legal means to families threatened by eviction; payment of the large sum of their debt is a financial problem in need of financial support.
Last year we could achieve result in one case on connection with an application for residing.
5. Anomalies discovered in the course of the census in 2001
Great expectation preceded the census of 2001, since the previous (ten years ago) similar event significant and complex changes had taken place in the political, social and economic life of the country.
In Hungary, according to paragraph 7 of the Act on minorities, everyone can freely take on his/her identity and identify himself/herself with his/her national and ethnical status; this is the exclusive, unalienable right of the individual. This means that nobody is allowed to establish the origin of others on the basis of colour, other external features (race characteristics) or name.
Paragraph 8 of the Act on minorities pays particular attention to the “census” of natural persons belonging to a minority, when it states: “It is the right of a citizen belonging to national or ethnic minority to admit unanimously and in secret his/her belonging to minority at the occasion of national census.”
It is an unfortunate historical fact as a consequence of the shock and fear caused by the Second World War and the events following it a part of citizens with minority identity has a feeling even today that by openly declaring his minority identity he may make his or his family’s life impossible. Though the memory of deportation, relocation did not recede into the dim past yet, still in 2001 – ten years after the change of system – we could justifiably hope to get a more accurate and precise account of the composition of the population of Hungary.
Accordingly, in order to overcome fears, the Central Office of Statistics (COS) involved the representatives of the national minority self-governments in the preparation of census.
However, the ombudsman received several formal and informal complaints in connection with the census.
Unfortunately, we had to establish that in some settlements of the country the notary public, or the person responsible for census neglected the mandatory procedure prescribed in the Guide of COS in spite of the expressed request of the minority self governments and did not commission the census takers possibly speaking a minority language on the basis of the consent or opinion of the local minority governments.
Since we have received similar indications from other areas of the country we have voiced our concern about the fact that in several instances the attitude of the local notary public responsible for the accomplishment of the tasks of census had an adverse effect on the aim intended to achieve by the legislator; there was a real danger in the case of several settlements that we will not have an objective, realistic account of the proportion of different national and ethnic minorities within the population even after the census.
In our judgement the problem outlined above was due to the inexplicable and unjustified behaviour – in concrete terms due to the deliberate neglect of the obligation to cooperate with the minority self governments – and it was the opinion of the ombudsman then as well as now that the community rights of the national and ethnic minorities guaranteed by the relevant Act might have also been injured or endangered. The assignment of census-takers speaking minority language “in accordance with the expectations of the Guide” but “evading” the minority self governments beyond raising the issue of neglecting the constitutional right of national and ethnic minorities to local governance is at least partially suitable for preventing the realisation of the lawful aim of census as well.
Stating that can sum up experiences of the investigations of the parliamentary commissioner in connection with census, the correct intention of the legislator is of no avail if responsible public officials responsible for the implementation – contrary to the spirit of law and guidelines – neglect the cooperation of minority self governments. This behaviour – contrary to the aim of the legislator – bred mistrust and it cannot be excluded that this fact at least in part had an impact on the result of census as well.
6. Bureaucratic features of the system of supporting public trusts
The state also renders assistance to the studies of university students belonging to national or ethnical minorities by scholarships paid by the Public Trust for Hungarian National and Ethnic Minorities and the Public Trust for Hungarian Roma. Many students would not be able to continue their studies without this support due to their social circumstances. Therefore the trusts are burdened with increased responsibility for keeping the balance between the adherences to the conditions of tenders and disregarding the bureaucratic features of procedure.
According to our position it is justified the trusts deciding on the use of the taxpayers’ money should consistently ensure the adherence of the students applying for scholarship to the conditions of tenders. However, the case outlined below exemplifies that the inflexible and mechanical operation of the support system may result anomalies.
One of our complainants has made a grievance of the procedure of the Public Trust for Hungarian National and Ethnic Minorities. The student has successfully finished his semester therefore he believed that they would continue to pay his scholarship. It has evaded his attention that he should have sent the copy of his school record closed for the semester to the office of the public trust not later than by 31st March 2001. He realised this obligation only on the first working day after the deadline has expired and posted the copy of his school record and informed the director of the public trust about this by phone. In spite of this, the board of trustees of the public trust withdraw his scholarship by referring to the missing of the deadline.
The section (1), paragraph 282 of the Civil Code clearly states, “if the last day of the deadline of performance is a rest-day, the deadline expires on the next working day.” Judicial practice regards the days indicated in the Labour Code as weekly rest-days including Saturdays.
According to our position taken in this matter, since 31st March 2001 was on a rest-day (Saturday), the deadline defined if the contract of support has expired only on the following Monday.
The minority commissioner has initiated to disburse the scholarship to the student retroactively and with interest in order to remedy this anomaly. Moreover, he initiated that if they have withdrawn the scholarship of other students by referring to missing the deadline although they fulfilled their duties defined in the contract of support they should also pay the scholarship retroactively to them.
The public trust informed me that it was not an individual case; they have withdrawn the scholarship of two other students for the same reason. The board of trustees did not admit their injurious procedure but decided to exercise fairness and transferred retroactively the amounts of scholarships to the students concerned.
Chapter V.
Minority commissioner and codification
1. Preparation of codification as a specific “channel” of asserting minority rights
Pursuant to the Constitution, the Act on Minorities, or the Act on the Parliamentary Commissioner the parliamentary commissioner for the rights of national and ethnic minorities haven’t got a well-definable task of preparing codification.
The paragraph 25 of the Act on Data protection prescribes the obligation to express opinion on the enactment or amendment of laws, or on laws connected with information rights only the data protection commissioner.
The paragraph 24 of the Act on parliamentary commissioners defines the possibilities of the parliamentary commissioners in connection with codification only in general terms when it states:
“If according to the standpoint of the parliamentary commissioner the anomaly in connection with the constitutional rights is retraceable to an unnecessary, ambiguous provision of a rule or any other legal instrument of public administration or to the lack (shortcoming) of the legal regulation of the problem under review, the commissioner may propose to the organ entitled to codification or issuing other legal instrument of public administration the amendment, annulment or issuing of the law (or other legal instrument of public administration).”
Since the Act on Minorities does not include provisions for establishing rights similar to that of the Act on Data protection, for the minority parliamentary commissioner in relation to express opinion on, or preparation of legal material concerning minorities; this commissioner cannot be regarded as a factor of the inter-departmental harmonisation from the point of view of codification. The paragraph 38 of the Act on Minorities authorises the national self-governments of minorities to express opinion on draft laws relating to minorities, consequently it would be the duty of the governmental organs and the local governments of the counties and the capital to forward these draft laws to the national self-governments.
In the past years, our office has received several complaint where the national self-governments objected to the fact that they were left out from the inter-departmental harmonisation or that they only had an opportunity to express their opinion in connection with the text of draft laws unknown to them in details in the course of their parliamentary debate.
No substantial change or progress had taken place in this field in 2001 in spite of the fact that in reply to the request of the minority ombudsman the Minister of Justice explicitly promised to obtain the opinion the opinion of national self-governments on every law relevant to the rights of minorities.25
2. Introduction of our activities concerning the expression of opinion and making proposals in connection with certain laws
The parliamentary commissioner for minority rights frequently receives complaints to the effect that according to the complainants the violation of their constitutional rights was the consequence of an allegedly erroneous provision of law, the shortcomings of the exact legal regulation. It frequently occurs that provisions of law raise problems of interpretation preventing the uniform application of law and they are factors having an adverse impact on law enforcement.
We should like to demonstrate our case in connection with Government Decree no: 267/2000 (XII. 26.) on the entitlement to benefit of those who suffered from prolonged confinement as a typical example of the cases dealt with by the minority commissioner.
2.1. Debates on the concept of “compensation”
The Government Decree no: 267/2000 (XII. 26.) (Hereinafter: the Decree) on the entitlement to benefit of those who suffered from prolonged confinement intends – as it is indicated in its title – to provide benefit to a certain circle of injured parties who suffered from prolonged confinement by transferring the duty of disbursement to the competence of the Directorate of disbursements of pensions.
Several natural persons of German minority appealed to the parliamentary commissioner following the rejection of their application submitted to this Directorate.
The complainants and also on behalf of the National Self-government of Germans in Hungary has found the fact of rejections injurious and unfounded; moreover they also voiced their belief the procedure of the authorities against members of the German minority is discriminative.
It has been proved by the investigation that the provisions of the Decree are ambiguous; conclusions to the occurrence of discrimination were the results of the shortcomings of the Decree.
The Decree - as it is indicated in its title – orders to provide benefit to “a certain circle of injured parties who suffered from prolonged confinement”. At the same time the Decree narrows the scope of those entitled to compensation to the injured parties by arrests or deportation after 1st January 1945. However, deportation to the Soviet Union could have taken place even before that date, thus neglecting the events of the autumn 1944 might realise harmful discrimination among the different groups of injured parties suffering from actual confinement.
Similarly the provision included in point c), section (1), paragraph 1 of the Decree might be considered as a violation of the general rule on banning discrimination included in section (1), paragraph 70/A of the Constitution and consequently as an anomaly in connection with constitutional right, when it entitles to compensation only those “who were held under closed, camp-like circumstances in Recsk” in police custody. Whereas it is a historical fact that people were held in police custody under the same circumstances and from the same reasons in other settlements, like Kistarcsa, Tiszalök and elsewhere.
The provision of point a), section (1), paragraph 3 of the Decree also realises – though in an other manner – negative discrimination by excluding persons from the compensation whose term of confinement was less than 3 years.
According to the evidence of complaints collected by the National Self-government of Germans in Hungary and forwarded to the parliamentary commissioner for minority rights, mostly those persons of German origin do not meet the conditions of compensation according to the Decree upon whom very serious retaliation was inflicted in the past just because of their German origin. The Decree in its current for and by its legal effect raises the suspicion of (repeated) racial discrimination.26 Only an amendment of this decree can dissolve this “suspicion”.
Summing up what
has been outlined above, due to the problematic provisions of the Decree and to
the exposed anomalies in connection with the constitutional rights, the
parliamentary commissioner for minority rights forwarded a proposal to the
Minister of Justice, responsible for preparation of codification and amending
laws requesting the amendment of this Decree in order to meet the following
requirements:
1. the personal and factual scope of the Decree should make it obvious and
unambiguous this governmental codification act is compensation statute;
2. the definition of the conditions – the term and location of confinement, the scope of entitled persons – should correspond to the provision included in section (1), paragraph 70/A of the Constitution with particular regard to the normative guidance provided by the Constitutional Court in this issue.
Since the information received last time in September 2001 we have not been officially informed on any measures taken by the Ministry of Justice, but the Hungarian Gazette published on 28th December 2001 that Government Decree no: 314/2001 (XII. 28.) has amended the provisions of this Decree. The substance of the amendment is that the legislator has made the compensation of injured parties who suffered confinement possible regardless of the location of their confinement.27
Thus the codifier has amended one of its discriminative provisions but did not remedy the other anomalies outlined above in details. Currently, the relevant process of the Constitutional Court is in progress and those concerned – the “potentially entitled” persons to compensation hope that decision will be made while they still live.
2.2. Our task in connection with expressing our opinion on the so-called “language law”
At the session of the Parliamentary Committee of Human and Minority Rights and Religious Affairs on 10th October 2001 the draft bill no: T/4899 on “the use of Hungarian language in economic advertisements and sign-boards of businesses and in the course of publishing information of public interest” was on the agenda of the committee as a separate item.
In the course of the debate on the draft it became clear that the Ministry of Justice previously did not harmonise it with the national minority self-governments and that the draft affects the special minority rights in the field of the use of language guaranteed by the Act on Minorities and by other laws.
The minority ombudsman has pointed out that the draft bill is aimed at “the protection of the Hungarian language”, but the norm text including only six paragraphs mainly dealing with consumer protection rules, thus the codifier “wandered away from the subject” to a field, that comes under the scope of regulations of other statutes.
Our other objection against the draft is related to the enforcement of the constitutional right to the publicity of data of public interest.
The paragraph 3 of the draft (since then a passed bill) deals with the signboards containing information of public interest in public places and in private land open for the public, and on means of mass communication.
The expression of “information of public interest” in itself would not have caused problem even in the absence of an exact legal definition; however, raised confusion of ideas and problems that the codifier placed the scope of “data of interest” into the same category as that of the “information of public interest”. Whereas according to the preamble of the draft it intends to ensure the condition of the “actual exercising of the freedom of information” guaranteed by paragraph 61 of the Constitution by stipulating that information of public interest should be published in Hungarian.
The exclusion of natural persons who doesn’t speak Hungarian from the knowledge of data of public interest means none other than the violation of the provision on the general ban of discrimination included in section (1), paragraph 70/A of the Constitution and the violation of the special minority language rights included in section (2), paragraph 68 of the Constitution and in the Act on Minorities.
One should mention among the shortcomings of draft bill commented by the parliamentary commissioner that it regards every settlement of the country as a homogenous unit from the point of view of language irrespective of the possible minority composition of the population; e.g. it doesn’t differentiate between a village populated in diaspore by a national minority and a district of the capital.
In the interest to be in harmony with the Act on Minorities, the codifier elaborated the following – far from being unproblematic – provision: the requirements defined in this Act doesn’t affect economic advertisements and signboards in minority languages defined in paragraph 43 of the Act no: LXXVII of 1993 on the rights of national and ethnic minorities and displayed in settlements where a minority self government of the minority concerned functions.”
This solution may be objected to from the aspect of constitutional and minority rights because in case a minority local government discontinues to function in a given settlement – where for instance a minority ombudsman represents a minority community – the not at all minority friendly rules of the “language law” should be applied which may also mean that the ceasing of a minority self government for whatever reason will involve the replacement of street-plates and other displayed information of public interest with decades of history by street-plates in Hungarian.29
In our view this Act – considering the legal practice of the Constitutional Court – would not stand “the probe of constitutionality”: in case of a motion in this direction the Constitutional Court would probably annul its provision requiring the condition of a functioning minority self government for exercising minority community rights.
2.3. Another legal instrument against discrimination in the field of employment
In each previous report of the parliamentary commissioner we have elaborated proposals aimed at changing the legal environment in the interest of a more effective action against discrimination in employment. Our work was successful; the majority of our proposals had been favourably received. For instance, we initiated the amendment of the code of civil procedure that made it possible for the labour court to act in case of illegal rejection of establishing employment relationship; we have participated in elaborating30 the legal concept of the “indirect harmful discrimination” codified for the first time in the Labour Code and our proposal related to the reversal of the burden of proof in the course of labour control has also been accepted. The latter means that in the course of inspections performed by labour and job security inspectors in connection with the adherence to the law banning harmful discrimination, the employers have to prove that their procedure was not discriminative.
Last year two problems – where earlier we couldn’t achieve progress - have been solved. These cover the sanctioning of discriminative advertisements of jobs and the extension of the sphere of competence of the labour supervision.
Another initiative of ours related to the amendment of the Act no: LXXV of 1996 on control of labour affairs. Considering the factual effect of this Act the labour supervisory bodies decided that the condition of performing the labour control of employment relationship has already been created, therefore they didn’t investigate complaints relating to the discriminative rejection of establishing employment relationship. In our view, this procedural practice endangered the practical enforcement of the ban on harmful discrimination also guaranteed by the Constitution. The Minister of Social and Family Affairs rejected our codification proposal by referring – instead of substantial reasons - to the “overburden” of labour supervisions.
However, at its session held on 2nd May 2001, the Employment and Labour Affairs Committee of the Parliament has discussed the report of the minority ombudsman. We believe it was a significant success that this body already unanimously supported our proposals in connection with the expansion of the sphere of competence of the labour supervisory bodies and the sanctioning of illegal advertisements. Last autumn an independent motion of the committee on the amendment of the Act on labour control has been presented to Parliament. The Parliament has unanimously passed the Act on CXIII of 2001, which expanded the effect of the Act on labour control “in the interest of controlling the compliance with the ban on harmful discrimination, to the employers’ procedure of preparing to establish employment relationship with particular regard to tendering and selection too”.
However, this favourable change of law shall have an actual effect if the labour supervisory bodies will consequently apply the available legal instruments.
3. The minority ombudsman and the case of antidiscriminatory codification
In the report of the parliamentary commissioner for the national and ethnic minority rights on the year 2000, the necessity and the possibilities of codification of antidiscriminatory laws has been detailed and emphasized. The “activist” role of the minority ombudsman is proved by the fact that he published the draft law on the “action against racism and xenophobia” as an enclosure of the report, and in the course of its preparation - apart from tasks originating from our international obligations – we have taken the approved experiences of well known exemplary countries, the majority of them are members of the European Union.
Our initiative – though it was not accepted by the Parliament – originated from the following objectively justifiable assumptions:
· In Hungary, in spite of the provisions of the Constitution and some other laws prohibit discrimination, it still exists and this phenomenon at least in part, is due to the absence of legal regulations.
· The concept of harmful discrimination is far from being unambiguous and self-evident and since the concept of discrimination may also be comprehensible as a constitutional right linked to the exemption from discrimination and the guarantees serving its remedy should be ensured by an Act.
· The individual statutes are ab ovo discriminative and it is not allowable because in this case the state and other depositaries of public power realise harmful discrimination against their citizens.
The Human rights, minority and religious affairs committee of the Parliament has discussed the draft bill on anti-racism and anti-discrimination and in its decision accepted by a majority vote has taken a stand in establishing the necessity of a law with this content. At the same time the parliamentary committee proposed to the Government to consider and include the draft bill of the minority ombudsman in its codification program.
It is due partly to our initiative and partly to the Guidelines no: 2000/43/EC of the European Union that the Minister of Justice decided in December 2002 to establish the Anti-discrimination Inter-departmental Committee (hereinafter: AIC) for investigating the phenomenon of discrimination and for establishing the necessity and trend of its regulation.
The Minister of Justice asked the parliamentary commissioner for minority rights and also his colleague to take part in the work of AIC.
We have consistently emphasized at the sessions of AIC that the legal system doesn’t comply with EU expectations and – apart from a few exceptions – the detailed rules of implementing the provision of paragraph 70/A of the Constitution regarding the general ban on discrimination are missing.
The representative of our office has defined the position of the parliamentary commissioner, namely that the basic concepts of equal treatment and harmful discrimination should be defined in a comprehensive anti-discrimination act, in terms of a better terminology in a statute on equal treatment; thus particularly the meaning of indirect, or hidden discrimination compared to direct discrimination should be defined in an exact form and what should we mean under segregation and the cases of allowable discrimination – the positive measures for balancing chances – should also be clarified.
The AIC didn’t take position in substantial issues in spite of the fact that we have presented cases of obvious violations of law to the representatives of the ministries. Though the representative of the Ministry of Education admitted that segregation in schools bearing hard first of all on Roma youth is an existing phenomenon but he was not able to answer the question: is the Ministry able to manage this special case of harmful discrimination or does it plan to do so.
The representative of the Ministry of Defence gave another interesting example: he told the committee that according to the standpoint of his ministry they haven’t experienced any harmful discrimination in connection with military service relationship and he even added that this is excluded by the existing statutes. However, in reply to a question he told that indeed, homosexuals couldn’t be professional soldiers but he qualified this as “a fact deriving from specifics of military service”.
It is not up to the parliamentary commissioner for minority rights to investigate cases outside the scope of minority (ethnic) discrimination or to initiate the review of statutes obviously violating law. Still, this case demonstrates well that the statute itself can be discriminative, particularly if we compare the special Hungarian solution with the practice of the member states of the European Union.
We have read with certain astonishment the circular prepared by the deputy state secretary of the Ministry of Justice responsible for public law prepared in February 2002, which included – among others - the following statements in connection with the work of AIC: “The members of the committee performed intensive, prudent and analysing work; they have established in their summary report that there is no statute which is contradictory to the Constitution and they haven’t come across legal gap that would provide a possibility for discrimination. However, they raised the necessity of reviewing the system of sanctions of certain statutes, the problems of applying law, the problem of enforcement, the shortcomings of implementation, the problem of the system of forum and the consideration of the possibility of harmonisation of interest, assertion of interest prior to the lengthy court procedure and the early and regular information of the civil society.”
We cannot agree with the quoted evaluation of the Ministry that obviously reflects satisfaction.
4. Introduction of our anti-discrimination conference of 2001
The parliamentary commissioner for the national and ethnic minority rights has organised an international conference on 6 and 7 December 2001 with the approval of the Committee Against Racism and Intolerance of the Council of Europe (ECRI) and the support of the Open Society Institute under the following title: “Legal regulation of the principle of equal treatment and the prohibition of harmful discrimination.”
The primary goal of the conference was to introduce – in cooperation with the European Union, the Council of Europe and the representatives of governments, civil organisations of neighbouring countries – the existing European norms and also the way of thinking that characterises the member states of the European Union and the candidate countries in the course of codifying antidiscriminatory laws to the participants representing the domestic codification and other personalities of public life.
In addition to the presentation of positive international examples, the objective analysis of discriminative phenomena overshadowing our everyday life, the deficient and feeble instruments of acting against them and in connection with this the introduction of the efforts made by the parliamentary commissioner for national and ethnic minority rights together with other state and social organisations in the interest of eliminating the phenomenon of harmful discrimination was also an important goal of this conference.
Our initiative was of pioneer character since it was the first time a conference covering and analysing all areas of the phenomenon of discrimination has been organised in Hungary. Our lecturers were well known, internationally respected experts who study the phenomenon of harmful discrimination since a long time, who – on the basis of their theoretical and practical knowledge - could provide useful assistance to working out the basic concepts of discrimination and to the introduction of methods suitable for their prevention and the dissolution of tensions caused by them.
The lectures are available in a separate volume31 and they speak for themselves.
25 The Committee for human rights, minority right and religious affairs of the Parliament has discussed the draft of the so-called „language law” on30th October 2001 and in the course of this it became obvious that this law may also affect the right of use of language of the minorities; in spite of this the Ministry of Justice presenting this draft law did not posses the obtain the opinion of the national self-governments.
26 In this case we are not facing a direct form of discrimination, thus the decree doesn’t state that persons of German origin are not entitled to compensation. (benefit). It would realise indirect or hidden discrimination, if the personal and objective scope of the decree were defined so that members of the German minority are excluded from the compensation, or in more precise terms, that they do not meet the conditions prescribed by the decree. It is a particular anomaly that the codifier has forgotten about the Germans although he should have known: this group had to face increased atrocities on the basis of the principle of collective guilt.
27 The earlier legal regulation made only the „compensation” of those who were imprisoned in the internment camp of Recsk.
29 Cessation of minority self governments should not be regarded as an unusual or seldom phenomena; it may occur in the case of dissolution or self-dissolution and also when the number of representatives of the minority self government drops below the threshold of functioning due to perhaps reasons of vis major.
30 For the time being the legal definition of the so-called indirect discrimination or indirect harmful discrimination is included only in the Labour Code, however, we believe it would be necessary elaborate general legal concepts applicable in every faculties of law for the establishment and remedy of harmful discrimination. See for details: the chapter titled „The minority ombudsman and the case of codification of anti-discriminatory laws”.
31 This volume is still being edited at the time of writing this report, its publication is expected this autumn.
I. Cases filed in 1999, broken down according to the plaintiff's person
|
Individual |
281 |
|
Minority self government, Civil organisation |
85 |
|
Central governmental organ |
40 |
|
Local government |
8 |
|
Ex officio |
30 |
|
Other |
9 |
|
Total |
453 |
II. Procedures started in 2001
|
Investigation based on the complaints submitted |
375 |
|
Investigation started ex officio |
30 |
|
Information |
6 |
|
Official position |
40 |
|
Other |
2 |
|
Total |
453 |
III.Minorities affected
*Nektv.: Act LXXVII of 1993 on the rights of national
and ethnic minorities
|
Roma |
292 |
|
Bulgarian |
1 |
|
Greek |
0 |
|
Croat |
0 |
|
Polish |
0 |
|
German |
49 |
|
Armenian |
2 |
|
Romanian |
3 |
|
Ruthenian |
1 |
|
Serb |
1 |
|
Slovak |
6 |
|
Sloven |
1 |
|
Ukrainian |
0 |
|
Plaintiffs not within the scope of Nektv.* |
73 |
|
Cases affecting more than one or all of the minorities |
24 |
|
Total |
453 |
IV. Regional distribution
|
Baranya |
14 |
|
Bács-Kiskun |
26 |
|
Békés |
9 |
|
Borsod-Abaúj-Zemplén |
29 |
|
Csongrád |
16 |
|
Fejér |
7 |
|
Gyõr-Moson-Sopron |
5 |
|
Heves |
19 |
|
Hajdú-Bihar |
17 |
|
Komárom-Esztergom |
15 |
|
Nógrád |
11 |
|
Pest |
29 |
|
Somogy |
8 |
|
Szabolcs-Szatmár-Bereg |
27 |
|
Jász-Nagykun-Szolnok |
9 |
|
Tolna |
12 |
|
Vas |
8 |
|
Veszprém |
11 |
|
Zala |
3 |
|
Budapest |
172 |
|
Complaints not relating to any specific region |
6 |
|
Total |
453 |
V. Organs affected by the cases filed
|
Company-supplier of electricity or water |
2 |
|
The court of justice |
31 |
|
Law enforcement institution |
14 |
|
Institution of Healthcare |
3 |
|
Minority self-government |
4 |
|
Office of public administration |
3 |
|
The media |
5 |
|
Ministry, organ with national competence |
13 |
|
Educational institution |
16 |
|
Bank |
8 |
|
Police organ |
49 |
|
The Social security self-government and pensions office |
7 |
|
Local government |
118 |
|
Attorney's Office |
11 |
|
Enterprise |
1 |
|
Other* |
171 |
|
Total** |
456 |
*Informative materials sent to our office belong to this group
along with complaints against private individuals and cases remitted to the competent
commissioners
** In one case there can be more than one organ affected.
VI.Total number of reccommendations and initiations
|
Initiation |
52 |
|
Reccommendation |
20 |
|
legislative proposal |
9 |
|
Initiation accepted |
34 |
|
Reccomendation accepted |
11 |
|
Legislative proposal accepted |
6 |
|
Acceptation rate |
63% |
VII. Organs affected by the reccommendations, initiations, legislative proposal
|
Local government |
40 |
|
Ministry of Education |
11 |
|
Ministry for the Families and Social Welfare |
2 |
|
Ministry of Justice |
6 |
|
Public Administration Office |
4 |
|
Public Fundation |
5 |
|
Parliamentary Commission |
1 |
|
Central Office of Statistics |
1 |
|
Police |
2 |
|
Total |
72 |
VIII. Measures taken after investigations*
|
Information |
127 |
|
Official position |
76 |
|
Mediation |
6 |
|
Remittal |
35 |
|
Refused without investigation (outside scope of competence) |
31 |
|
Dismissed after investigation |
33 |
|
Call for investigation by other organ |
9 |
|
Reccommendation, initiation, legislative proposal |
81 |
|
Other |
8 |
|
Pending |
79 |
|
Total |
485 |
*In one
case more than one measure could have been taken.
