Case number: 2243/2002
Report
on the enforcement of minority rights
based on experiences with the operation of
minority self-governments in 2002
Commencement of the enquiry
After the systemic change, and in particular following the adoption of Act LXXVII of 1993 on the Rights of National and Ethnic Minorities (hereinafter: ARNEM), the legal position of minority communities living in Hungary underwent major changes. In line with the Constitution, which states that national and ethnic minorities are constituent parts of the state, minority self-governments, the bodies of self-administration of minority communities with legal personality under public law were formed.
The members of minority self-governments have encountered a number of problems and regulatory deficiencies since the establishment of the representative bodies; these have not been resolved and changes have not been implemented to this day.
The necessity to amend the ARNEM arose already in the first term of minority governments; still, despite continuous codification efforts against a background of a frequently changing organisational framework and lengthy political discussions, it has not happened to this day. Delays in the amendment of the ARNEM and other related legislation affecting the rights of minorities have lead to considerable difficulties; it is enough to refer to the abuses encountered in the course of the minority self-government elections of 2002. The protracted amendment process may have increasingly severe consequences. As a result of the problems and deficiencies relating to the operation of minority self-governments, certain politicians and experts question the necessity of the institutional system itself.
In the spring of 2002 we launched an enquiry into the position of minority rights covering the minority self-governments and municipal governments of Baranya and Szabolcs-Szatmár-Bereg counties with a view to making recommendations and proposals to improve the efficiency of the minority self-government system based on the experiences with the operation of minority self-governments and relying on the views of minority and local politicians.
Our enquiry was not without precedent: we had initiated a comprehensive survey of all the minority self-governments and the affected municipal governments in operation at the time in 19971 In recent years we have issued a number of recommendations, initiatives and proposals based on the complaints received in connection with the activities and operational difficulties of minority self-governments.
In our annual ombudsman’s reports to Parliament we have always given priority to the issue of the minority self-government system.
In recent years important studies analysing the work of minority self-governments have been conducted in various academic institutions as well.2
The survey we initiated differed from its predecessors in that the questionnaire survey, which was at its core, concentrated on the enforcement of minority rights, in particular the rights of minorities defined in the ARNEM, and placed little emphasis on the identification of sociological factors affecting the operation of minority self-governments.
Survey methodology
The survey, which was conducted with the participation of the scholars of the Regional Development Research Department of the Regional Research Centre of the Hungarian Academy of Sciences (hereinafter: the Regional Development Research Department)3, consisted of three stages.
The questionnaire survey was the first and most important part of the research. The limited financial resources and tight time frame did not allow for the inclusion of all the minority self-governments in the country into the survey, therefore we selected Baranya and Szabolcs-Szatmár-Bereg Counties as the survey area. Baranya County was chosen for its diverse nationality past and present; in addition to the large number of Roma and German minority self-governments, the Croatian, Bulgarian, Greek, Polish and Serbian minorities also have self-governments in the county. We assumed that the “large” and “small” national minorities and their self-governments4 had partly similar and partly different problems, and there may be differences in their interests and in the strategies of their minority policies. At the other extreme, in Szabolcs-Szatmár-Bereg county all the currently operating minority self-governments, with six exceptions, have been formed by the Roma minority, and it is obvious from our experience and the various academic studies that the position of Roma minority self-governments is fundamentally different in many respects from the that of the self-governments of national minorities in Hungary.
In other words, the selection of Baranya and Szabolcs-Szatmár-Bereg counties was motivated by our conviction that, due to the composition of minorities in these two counties, the survey, though not comprehensive in its coverage due to the aforementioned limitations, would be able to the identify presumably typical issues and tendencies relating to the operation of minority self-governments in Hungary.
The questionnaire inquires about the enforcement of the rights stated in the ARNEM, problems with their day-to-day implementation and the co-operation of minority self-governments and municipal governments. In addition to minority self-governments, those municipal governments where one or more minority self-governments are in operation were also sent questionnaires.
This arrangement allowed us to learn the views of both parties about the achievements, failures and problems relating to the operation of minority self-governments and to see minority self-governments through the eyes of municipal governments as well.
Of the 123 minority self-governments in Baranya County in the spring of 2002, 57 returned the completed questionnaire, respresenting 46% of the total number. However, only 24 of the 93 minority self-governments of Szabolcs-Szatmár-Bereg County returned the completed questionnaire to the parliamentary commissioner, corresponding to 26%, which is significantly, 20% below the ratio in Baranya. Thus 81, or 38%, of all the 216 questionnaires sent to minority self-governments were returned.5
In the spring of 2002 81 settlements in Baranya County had one minority self-government in operation, and there were 16 settlements in the county with two or more minority self-governments.
Szabolcs-Szatmár-Bereg County had 84 settlements with one minority self-government each, and only three settlements with two or more. Thus the two counties had 184 settlements with one or more minority self-governments; of these, 110 municipal governments responded to the questionnaire, the response rate being 59%.
On the whole 38% of the minority self-governments and 59% of the municipal governments contacted completed and returned the questionnaire. The data in the returned questionnaires constituted the basis of research.
In the second stage of the survey, in the first half of June, we organised forums in two county seats: Pécs and Nyíregyháza. The chairpersons of the minority self-governments, the mayors, the members of parliament for the counties as well as the heads of public administration offices and the officials responsible for minority issues were invited to these forums. At these events the minority and local politicians were informed about the survey and they could make comments and recommendations or voice complaints.
In the third stage of the survey, in July 2002, the staff of the Regional Development Research Department conducted structured interviews in Baranya and Szabolcs-Szatmár-Bereg Counties with chairpersons of minority self-governments, mayors, town clerks and minority officials. The purpose of these interviews was to map on the local level the demographic, economic, social and political conditions of the operation of minority self-governments, the co-operation of the minority self-governments and municipal governments and the implementation of minority rights. Several considerations had to be reconciled when selecting the settlements and self-governments. As it was assumed that the operation and potentials of minority self-governments and municipal governments were significantly affected by the number of inhabitants in the settlement, county seats, small towns, villages and small villages were equally included in the sample.
We visited every self-government of “small” minorities – in the two counties: Bulgarian, Greek, Polish, Armenian, Serbian, and Slovak – for interviews, because in the statistical analyses they are overshadowed by “large” minorities (as they returned only two questionnaires), and also because we assumed that their potentials and powers of interest representation were more limited than those of “large” minorities. Finally, as we had not sent questionnaires to the minority municipal governments6 operating in the two counties because of their special positions, we conducted interviews with the mayor and, if possible, with the head of some minority society or NGO in a total of five such settlements.
In July 2002 51 interviews were conducted in 20 settlements in Baranya county, and 49 interviews in 22 settlements in Szabolcs-Szatmár-Bereg County.7
This report is based on the final paper of the Regional Development Research Department, which, in line with the objectives and methodology of the survey, follows the blocks of the questionnaire in its structure.
Purpose of the survey
In our survey of minority rights we set out to assess how the minority self-governments, established to promote the cultural autonomy of minorities and to provide a framework for this under public law, can promote the enforcement of the minority rights set forth in the ARNEM.
Furthermore, we considered it our duty to investigate in detail any issues and conflicts encountered in connection with the enforcement of minority rights, which may be conducive to the identification of deficiencies or controversial issues in legislation and to the separation of the legal, economic and social causes of operational disorders or malfunctions.
(Naturally, the survey did not intend to make the night side of the operation of minority self-governments or the co-operation of municipal governments and minority self-governments look darker than it is.) The findings of the survey reveal the most marked differences between national minorities and Gipsy self-governments and the major problems and difficulties of the minority self-governments surveyed.
In view of the above, we wish to make comments and recommendations which may contribute to eliminating or resolving the issues and deficiencies identified and which will make for the more efficient operation of minority self-governments, minority interest representation and the enforcement of minority rights.
Subjects of the survey
In the context of the rights of minorities we looked at several issues, in particular:
• the problems relating to the establishment of minority self-governments and to the election of their representatives;
• the conditions of operation of minority self-governments;
• the financial management, financing system and background of minority self-governments;
• the co-operation of minority self-governments with municipal governments, the related difficulties and discrepancies;
• the application of the right of petition, initiative and agreement of minority self-governments.
Furthermore, we examined
• the problems related to self-administration in education;
• the use of the mother tongue;
• experiences of minority elf-governments with incidents of negative discrimination;
• the training of members of the minority self-governments and municipal governments.
Finally, we set out to assess in general terms the enforcement of minority rights, surveying problems around the amendment of the ARNEM, the issues relating to the expansion of the scope of functions and tasks of minority self-governments, and briefly summarised the key findings of the survey.
I. Introduction
Current issues of
minority rights
II. The right of minorities to self-identity and self-government
1. 2002: the year
of local minority self-government elections
1.1. The identity
of the individual and the community, individual and collective forms of
self-identity, and related constitutional rights
1.2. An evaluation
of the minority self-government elections of 2002
1.3. The participation of minorities in the local municipal government elections: legal
issues of form and substance
2. The national
minority self-governments as special entities of public law
2.1. Characteristic
features of the national (and capital city) minority self-governments
2.2. The primary experiences of the elections for the national minority
self-governments
3. A promise
unkept: the autonomy of the minority self-governments
3.1. An inquiry into the application of minority rights as reflected in
self-governance
3.2. Problems
concerning the conditions of operation of the minority self-governments, and
proposals for their solution
3.3. Participation
of the minority self-governments in local
decision-making
III. The administration of the right to social security as reflected in the complaints submitted to our office
1. Legal guarantees
of social rights
2. Problems
relating to social assistance
3. Creating job
opportunities, as an important element of social provision
4. Problems of
shelter and housing
IV. The administration of the constitutional rights to human dignity and equal treatment, as reflected in submitted complaints
1. Personal rights and community
rights violations
2. The media 's
mind-forming effect on society
3. The problems of "public
dignity" and opportunities for legal regulation
4. The most blatent cases of
discrimination against minority communities or against natural persons
belonging to such communities
5. Anti-discriminatory legal
regulations
6. The necessity of legal assistance
in order to establish equality of opportunity
V. The administration of the educational rights of the national and ethnic minorities
1. An education
forum organised by the Parliamentary Commissioner for National and Ethnic
Minority Rights on the present and future of minority education
1.1. Summary of the
background and findings of the discussion material
prepared for the forum
1.2.1 Education for
the national minorities
1.2.2 Roma education working group
1.2.3 Higher education working group
2. Anomalies in
public education
2.1. Discrimination
due to the placement of children in special schools or classes
2.2. Discrimination
in establishing the conditions of education, attempts
at segregating Roma pupils
2.3. Registration
as private pupils
VI. The language rights of the minorities
1. A change in the
minorities' right to the use of name
2. Minority
languages: in a subordinate role with regard to language examinations?
VII. The administration of constitutional rights linked with the protection of personal data and the publication of data of public interest, as reflected in complaints involving minority rights
1. Minority rights
contra data protection?
2. Data protection
issues of minority education, or is there “registration” in schools?
VIII. The "big issues" receiving national attention
1. Paks: an anomaly
disguised in the semblance of legality
2. A restriction on
the constitutional right to choose one's place of residence: Németkér
3. The
"veterinary horse" of local government elections: Jászladány
IX.
X. Supplement
Report on the enforcement of minority rights based on experiences
with the operation of minority self-governments in 2002
1.
Formation of the minority self-governments, election of minority
representatives
Formation of the minority self-governments, continuity of the mandate of minority representatives
47% of the responding minority self-governments was formed at the time of the local elections of 1994, while 49% was established only in 1998.
For minority self-governments the first election term was the period of accumulating experiences, probing possibilities and testing roles, therefore the election of former representatives equipped with adequate experience and skills into the self-governments of the second election term promoted smooth and effective operation. The responses revealed that on average more than two members of the minority self-governments in operation since 1994 were identical in the two terms. However, this relatively encouraging figure must be interpreted with reservations due to the low number of cases examined.
66% of the minority self-governments indicated that their members were the same towards the end of the term as they were after the election in 1998.
Minority self-governments reported changes in their members in a total of 31 cases, mostly because of resignation and occasionally because of death or the change of residence.
Minority representatives in the representative bodies of municipal governments
Making use of the possibility to obtain mandates at favourable terms, the various minorities strived at the time of the 1998 elections as well to get their representatives elected into the municipal governments, mainly because under the current regulatory framework they do not consider the interest representation of minorities really effective and they intend to participate in decisions affecting the lives of their settlements as well.
According to the questionnaires, and reinforced by the interviews, members of the self-governments of the “large” national minorities have a better chance of obtaining seats on municipal governments as well. In contrast, Roma minority representatives have considerably less chance to do the same. The probability of this differs from county to county; it is higher in Baranya county (0.5 on average), and lower in Szabolcs-Szatmár-Bereg County (0.3). Thus Roma politicians have considerably less opportunity to move across the border between minority self-governments and municipal governments than politicians belonging to national minorities do. This indicates fundamental differences in their social integration and social recognition.
The data derived from the questionnaires of municipal governments paint a somewhat more favourable picture about the transit potential but this is primarily attributable to the low number of responses. However, the answers of municipal governments also confirm the correlation between the size of settlement and transit, that is, the co-incidence of the members of the two bodies is much more frequent in small villages.
Membership of minority self-governments and their representatives in county, regional or national level organisations and their relationship with the national (country-level) self-governments
In the survey we asked whether the minority self-government had any representatives who were also members of the country-level minority self-government or of the county council.
Ten of the responding minority self-governments had one member who was also a member of the country-level self-government, while only two reported members in the county representative body. County-level representatives were found in the self-governments of “large” minorities while a German representative and a Roma representative from Szabolcs were members in the representative body of the county.
We also asked whether the minority self-government was member of any county or regional level organisation. Despite the fact that at least the “large” minorities (Gipsies, Germans, Croatians) have founded county-level associations in both counties, most (54%) of the minority self-governments are not members in such organisations.
Over half of the minority self-governments (55%) consider the current legal regulation of the relationship between local and country-level minority self-governments to be adequate. However, the difference between national and Gipsy minority self-governments is marked. While the vast majority of the German (72%) and Croatian (71%) minority self-governments expressed an appreciative opinion of the relationship between the two levels, the Gipsy minority self-governments of Baranya (37%) and Szabolcs-Szatmár-Bereg (46%) counties were far from satisfied.
Similarly, the dissatisfied minority self-governments gave different responses to the question enquiring about the changes they would deem necessary to improve the relationship of the local and country-level minority self-governments.
During the interviews several leaders of the national minorities mentioned the possibility of setting up county-level minority self-governments, which they hope would facilitate better information flow and more efficient interest representation. They emphasised that without real powers, i.e., participation in decision making, the creation of a county level entity would have no significance.
For “small” minorities, represented by only one or two self-governments in the two counties, regional level associations rather than county level representation appear feasible and expedient.
Two responses indicated that controls over the work of the national level self-governments would need to be introduced. According to a German chairperson, the country level self-government should organise annual public hearings and they should hold on-site (committee) meetings in county seats.
On the other hand, there was only one chairperson of a Gipsy minority self-government who emphasised the necessity of a county-level body. The majority of those dissatisfied with the present relationship between the local and country-level self-governments did not consider the improvement of the institutional system a priority. Gipsy minority self-governments expect more support from the national Gipsy self-government, meaning both more information and more financial support. Another group of dissatisfied leaders is more radical, accusing the country level self-government, and in particular the chairman, of representing the interests of select groups rather than of the whole Roma community.
Views of the election system
In the context of the formation of the minority self-governments and the election of minority representatives, it is important to depict the views of both the minority self-governments and the municipal governments on the effective regulations governing the election of minority self-governments. Before going into the details, it should be emphasised that the data were collected before the minority self-government elections of 2002, therefore we have no way of knowing what effects the increasing numbers of election abuses had on the views of minority self-governments and municipal governments on this issue; it is reasonable to assume that now more of them would propose changing the election rules.
According to the questionnaire survey, 79% of minority self-governments and 70% of municipal governments expressing views of the effective regulations governing the minority self-government elections and of the related problems were of the opinion that it was unnecessary to change the current system of minority elections, i.e., they think that the practice of every citizen entitled to vote having the right to cast their vote on minority candidates is appropriate.
65% of the minority self-governments have no concerns that the present election system would give rise to abuse. However, 35% think that the possibility of abuse is inherent in the system. There is a marked difference between the responses of national and of ethnic minorities. The overwhelming majority of Gipsy minority self-governments both in Baranya County (80%) and in Szabolcs-Szatmár-Bereg County (85%) think that the system does not allow for abuse. Presumably this view is based on the experience that “even the »ethno-business« has been unable to make the assumption of the Roma identity a popular choice”8, therefore the Roma need not fear that citizens belonging to the majority or to other minorities would want to form a Gipsy minority self-government. (However, this generally accepted assumption has been refuted by the incident in Jászladány since then).
There are considerably more self-governments representing national minorities which hold that the current regulations provide scope for abuse; 52% of the Germans and 67% of the Croatians expressed this opinion. It is not a mere coincidence that the ratio of those who see the possibility of abuse as a real danger is significantly higher in larger settlements (62%). In small villages or small communities people know each other well, therefore they would know if someone not belonging to a minority would run for a minority mandate, and smaller communities have the power to prevent such attempts. In towns, however, where voters tend not to know the minority candidates, the possibilities in the so-called ethno-business are easier to exploit.
Those who think that the current system allows for abuse propose the amendment of the existing rules so that only members of minorities may be eligible for minority representative mandates (mentioned in 9 instances), it is little wonder that fewer people (2 instances only) would favour an arrangement where only members of the minorities would be eligible to vote. The presidents of Gipsy self-governments noted that (more) Roma members should be delegated to the election committees.
According to 88% of the municipal governments the present system of minority elections does not provide scope for abuse, and only 12% think that there is opportunity for abuse inherent in the system.
Apparently the assessment of the danger of abuse by minority and local politicians is considerably different, municipal governments not seeing this problem as being significant. The figures also convey the message that the minority self-governments would welcome changes in the system of nominating candidates while they would be reluctant to give up the votes of majority voters.
As to the nomination of candidates, advocates of changing the present system would require some kind of registration as the means of implementing the principle of “only members of a minority should become candidates”, and they would make the minority community (self-governments, associations) responsible for control. In order to preclude the “odd one out” phenomenon, and to assure that only persons supported by real minority communities can form minority self-governments in any settlement, the minority politicians would favour the introduction of some threshold of population or of nomination slips: for instance, minority candidates would need to collect more nomination slips, or the formation of minority self-governments should be made subject to “the presumed number of minority population”.
Summary, comments
This year a number of individual complaints have been received in connection with the formation of minority self-governments, the election of minority representatives and the deficiencies of the election system; our findings, recommendations and proposals have been summarised in separate reports. Therefore in this survey we only intend to discuss controversial issues reflected in the data collected.
79% of minority self-governments consider it unnecessary to alter the current election system. 65% are not concerned that the present election system would provide scope for abuse. Still, in professional circles it is becoming an increasing prevalent view that the current regulatory framework may question the legitimacy of the existing minority self-government system as the minority representatives are not elected exclusively by members of minority communities, and representatives belonging to other minorities or to the majority society and having no personal ties to the culture of the minority concerned may obtain seats on self-governments.
The minority self-government elections of 2002 also indicated that the problems are becoming more and more severe, and we may legitimately ask why more of the representatives working on a daily basis in minority self-governments do not intent to change this system. It may be assumed that minority self-governments where abuses have not been encountered yet have greater interest in maintaining the present structure than in introducing substantial changes in the election rules, with unpredictable consequences to themselves.
On the other hand, these hitherto exceptional instances may lead to the reinforcement of political intentions to eliminate the minority self-government system, or to the curbing of tasks and competences and cuts in the relating funding. These detrimental trends can be prevented only if legislative amendments acceptable to most of the minorities are introduced within a short time. Our survey also indicated that minority communities endeavour to get increasing numbers of representatives into the representative bodies of municipal governments. One measure of the integration of minorities into the local society and public life is the participation of minority representatives in the work of municipal governments as voting local representatives. To facilitate the improvement of the minority self-government system, the election rules governing the election of direct minority self-governments must be tightened. The objective is to have the members of minority communities elect from among themselves their representatives who are committed, have minority identity and speak their mother tongue.
In the course of legislative amendments the demand of minorities to increase the participation of their members in the representative bodies of municipal governments must also be taken into consideration.
The recurring issue of creating a county-level minority self-government also affects the regulation of the formation of minority self-governments. The existing technical proposals for public administration development would shift emphasis from the county to the region. Therefore it would be more appropriate to talk about the possibility of a middle level minority self-government, which may be either on the county or the regional level.
If, however, the rules governing the election of minority representatives are not changed, the introduction of a middle level could only add to the problems and operative inconsistencies of the system of minority self-governments. In an adequate legislative rule the relationship of the three minority self-government levels as well as their respective tasks and competences would need to be clearly identified.
2.
Conditions of operation of minority self-governments
Use of premises
Pursuant to the provisions of the ARNEM, the mayor’s offices set up by municipal governments are obliged to assist the work of local minority self-governments. The municipal government provides use of premises necessary for the operation of 86% of the minority self-governments which returned the questionnaire. The data reveal that municipal governments provide use of premises necessary for operation mostly to the Croatian (100%), Gipsy in Baranya (95%) and German (50%) minority self-government, while the Gipsy self-governments in Szabolcs (71%) are in a worse than average situation in this respect.
The data indicate that in the eighth year of operation of the minority self-government system the most important precondition of operation, the use of premises, is unresolved in 14% of the cases. In contrast, the data in the questionnaires returned by municipal governments reveal a much more favourable picture than the responses of the minority self-governments do, 96 percent of the municipal governments having reported that they provide access to premises.
Few of the responding minority self-governments have offices in their ownership; therefore, understandably, they mostly hold their meetings in a separate office within the mayors’ office or in a room also used by the municipal representative body.
The installation of modern equipment at the appropriate level in premises owned, used or rented was a possibility mostly for German minority self-governments only, facilitated by the support of their kin state as the German interior ministry provided financial support to the installation of every office, while the others have relied in acquiring the appropriate infrastructure necessary for their operation on the support of municipal governments or on funds available through application or, most typically, on their own resources – that is, if they are fortunate enough to have a separate office of their own.
Other operating conditions
According to the minority self-governments, the requisite technical facilities are mostly provided by the mayor’s office of the municipal government; telephones (61%), faxes (48%), computers (28%) as well as photocopying (64%) and filing (27%) facilities. However, close to 20% of minority self-governments had no access to faxes, computers or photocopying machines.
It is worth noting that municipal governments reported the provision of each and every technical condition in larger numbers than minority self-governments did. In their own opinion, municipal governments mostly made available the use of technical facilities necessary for the work of minority self-governments: telephones (78%), faxes (83%), computers (54%), as well as photocopying (91%) and filing (56%) facilities.
For 77% of the responding minority self-governments the municipal governments took charge of postal deliveries. The questionnaires returned by municipal governments indicated that only 72% of municipal governments performed this function.
According to the minority self-governments the typing and document reproduction tasks are performed by the relevant employees of the mayors’ offices in 88 % of the cases. 93% of municipal governments indicated that they took on themselves the typing and reproduction tasks necessary for the work of minority self-governments.
The analysis of the data by the number of inhabitants of settlements reveals that minority self-governments in larger settlements or towns are less reliant on the help of the municipal government staff.
Conditions and forms of support by municipal governments
The extent to which a certain municipal government, mayor’s office or rural district clerk’s office9 can support the operation of minority self-government(s) in the settlement depends on the assets and funds available to the municipal government as well as the number and needs of minority self-governments.
In small settlements there are generally not enough premises in adequate state of repair to allow minority self-governments to occupy and maintain an independent office, and these typically under-funded settlements are often unable to provide any financial assistance to their minority self-governments.
It is mostly due to the lack of funds that municipal governments provide no support to minority self-governments, and the overwhelming majority of Gipsy minority self-governments in Szabolcs-Szatmár-Bereg county operate in settlements which are themselves poor, “disadvantaged through no fault of their own”, and have no income but the normative government grants. Whether minority politicians are allowed “free access” to the mayor’s office depends on the generosity of the municipal government.
At the other extreme there are the small towns and, primarily, the county seats, with generally more than one minority self-governments (their numbers growing from election to election). They have enough resources to support their minority self-governments with relatively significant sums, and it is a typical arrangement in towns for minority self-governments and/or municipal governments, in co-operation with the employment centre, to jointly finance the employment of the administrative staff of minority self-governments in the form of communal work projects.
The help provided by municipal governments to the work of minority self-governments depends not only on capacities and needs but also on the confidence in the minority and its representatives, or the lack thereof.
Municipal governments can contribute to the operating costs of minority self-governments in several ways:
1. As the most common way of financial support, the municipal government bears the costs of the operation of the minority self-governments (covering the costs of mailing and reproduction, office staff taking care of minor administrative tasks etc.), but beyond that it provides no financial assistance. 44% of minority self-governments reported that this is the manner the municipal government contributes to their operating expenses, most frequently in the case of German minority self-governments (52%), less frequently among the Gipsy minority self-governments of Szabolcs-Szatmár-Bereg county (36%); this arrangement is typical in small settlements and small villages.
The municipal governments reported that 54% of them provided for the operating conditions of minority self-governments in this format.
2. Under another common arrangement, the municipal government provides general cash support to the minority self-government, which also covers operating expenses. Thirty percent of minority self-governments receive such assistance from municipal governments, most typically in case of Croatian and “small” minorities, and the larger the settlement, the more likely this strategy. According to the questionnaires returned by municipal governments, 26% of them employ this arrangement.
3. Under the third type of arrangement, the municipal government covers only part of the operating expenses of the minority self-government. 8 percent of the minority self-governments reported that the municipal governments were supporting them in this manner. 14% of the responding municipal governments said that they adopted this technique. This form of assistance appears to be outstandingly high in those settlements of Baranya county where Gipsy minority self-governments operate (33%).
4. Finally, occasionally the municipal government does not cover any of the operating expenses of the minority self-government and provides no assistance; this “arrangement” was reported by 15 percent of minority self-governments. Gipsy self-governments from Baranya (25%) and Szabolcs (23%), as well as minority self-governments operating in small villages of less than 500 inhabitants encountered this problem considerably more frequently than average.
Contrary to the information derived from the responses of minority self-governments, only a fraction (a mere 2%) of municipal governments indicated that they did not cover the operating expenses of minority self-governments and did not provide financial assistance either.
Consulting hours
66 percent of minority self-governments have consulting hours; while an outstanding percentage of Gipsy self-governments in Baranya (85%) and Szabolcs-Szatmár-Bereg (77%) counties reported holding consulting hours more or less regularly, this ratio was the lowest among German minority self-governments (44%). The fact that the number of minority self-governments holding consulting hours is very high (92%) in larger villages, small towns and county seats is partly related to the number of inhabitants belonging to the minority concerned and partly to the looser network of relations. This is why minority leaders in small settlements argue that there is no need or demand for consulting hours because there is “daily contact” between members of the self-government and the inhabitants belonging to the minority, and anyone can “visit the chairperson and the representatives at any time in their homes”.
The questionnaires returned revealed that 45% of municipal governments provide the possibility for minority self-governments to hold consulting hours, generally in the premises of the mayor’s office.
The problems in connection with which minority residents solicit the help of their self-governments are diverse, but again there is a fundamental difference between Gipsy and national minorities. Not only are Gipsy self-governments more frequently contacted than the self-governments of national minorities but also the problems are fundamentally different, mostly welfare and employment related. Gipsy self-governments are under considerable pressure from members of the Roma community, who seek assistance mostly in solving problems of subsistence, while self-governments of national minorities are mostly contacted in connection with issues that can be addressed and resolved within the framework of the Minorities Act: education issues, declarations of support for further education, applications, funding for cultural events or associations.
Technical assistance by mayor’s offices
In addition to assuring the physical conditions, town clerks and the staff of mayor’s offices also have the duty to provide technical assistance to minority self-governments.
According to the responding minority self-governments the minutes of minority council meetings are prepared mostly (66%) by the (rural district) town clerk, in some instances (17%) by an employee of the mayor’s office, and then forwarded by the town clerk to the public administration office.
92% of municipal governments reported that the office or town clerk of the municipal government provides for the preparation of the minutes of the meetings of the minority self-governments and for their forwarding to the public administration office.
35% of the minority self-governments make use of the help of the staff of the mayor’s office on a regular basis (several times a week), while 49% do so in conjunction with the meetings of minority self-governments, that is, for the preparation of briefing documents or the minutes. 40% of municipal governments reported that the minority self-government could regularly rely on the help of the mayor’s office for typing, reproduction, correspondence or the preparation of applications. 50% provide such assistance in connection with the meetings of the minority self-government.
90% of the minority self-governments stated that they could turn to the town clerk or the mayor’s office for help in technical issues, ranging from the interpretation of legal regulations to the preparation of applications. Close to 10% of the responding minority self-governments still complained about the absence of such assistance; in their case the town clerk and the mayor’s office, despite the legal obligations, did not provide adequate technical assistance.
The minority representatives mentioned the following reasons: prejudice against the Gipsy minority self-government, or “in a better case” indifference, disinterest, bad relationship between the town clerk and the minority self-government, and only one minority self-government said that they did not need any assistance.
In contrast, almost every municipal government (95 of the 97 responding municipal governments) stated that the mayor’s office or town clerk provided technical assistance to minority self-governments.
Additional burdens on municipal governments
50% of the municipal governments answered affirmatively to the question whether the formation of the minority self-governments has resulted in additional burdens for them. Such additional burdens were reported mainly by municipal governments in Szabolcs-Szatmár-Bereg County, primarily in larger settlements.
The additional burdens and responsibilities arising from the formation and operation of minority self-governments are attributable primarily to the increased administration, and higher expenditures are also related to this to some extend.
Municipal governments would require technical and financial assistance. They complain that the provision of premises and technical facilities, and in particular the remuneration of municipal government staff performing administration for minority self-governments, imposes financial burdens on municipal governments, and in their opinion they should be compensated for this in the form of government grants, while in larger settlements the employment of minority officials should be financed from government funds as well.
Summary, comments
Our survey revealed that the smaller a settlement, the more minority self-governments are reliant on the technical facilities of mayor’s offices. In towns, where a significantly higher proportion of minority leaders and representatives are highly qualified professionals than in small villages, we more frequently find representatives who can type into a computer and print out minutes of meetings of the representative body and write invitation letters for the meeting in their homes or at work. It was mostly minority self-governments in large settlements that reported that they resorted to the technical assistance of the mayor’s office only occasionally (30%) or not at all (20%). This is the reason why the Gipsy minority self-governments of Szabolcs-Szatmár-Bereg County are most in need of the assistance of the mayor’s office of the municipal government. It can be concluded from the analysis and comparison of the questionnaires of minority self-governments and municipal governments as a general finding that the municipal governments paint a more positive picture about themselves in respect of the support of the operation of minority self-governments than minorities do. This is especially true in case of the Gipsy self-governments of Szabolcs. According to the municipal government questionnaires, the municipal governments of Szabolcs-Szatmár-Bereg County provide the necessary conditions for the operation of Gipsy minority self-governments to a greater extent than it is reported by the minority self-governments. The relatively significant difference between the responses may be attributable to the fact that, on the one hand, in this county a much larger number of municipal governments returned the questionnaire than Gipsy minority self-governments did and, on the other hand, presumably a higher proportion of the latter responded to our questionnaire exactly because the co-operation between the two entities was not satisfactory.
Municipal governments are hindered in supporting minority self-governments and in providing for the conditions of their operation primarily by the lack of resources. However, the absence of the required technical assistance is often due to attitude problems.
Article 28 of the ARNEM provides that the mayor’s office set up by the municipal government must, under the terms of its organisational and operational rules, assist the work of the local minority self-governments. Government Decree No. 217/1998. (XII.30.) Korm. on the operating procedures of the general government contains more specific provisions concerning the duty of the mayor’s office in that it must provide for the operating conditions of the local minority self-governments upon request, in particular: the use of premises in accordance with the procedures of the representative body of the minority self-government, discharging relating duties: mailing, delivery, typing, reproduction, including the bearing of the related expenditures. In many cases minority self-governments are still not certain in which particular tasks they can rely on the municipal governments, and how they can “enforce” the assistance of the mayor’s office.
It would be expedient to regulate in detail in the ARNEM the particular forms and conditions of assistance which the municipal government must provide if requested by the minority self-government.
Furthermore, an appropriate technique of compensation for the performance of tasks and provision of premises should be devised within the system of grants to municipal governments; this is especially important in the case of under-funded small settlements. Article 8 (4) of Act LXV of 1990 on municipal governments (hereinafter: LG Act) specifies the enforcement of national and ethnic minority rights as mandatory tasks of municipal governments. According to Article 1 (5) of the LG Act, the Parliament, concurrently with the definition of mandatory tasks and competences of municipal governments, provides for the funding required for them, and decides on the level and mode of budgetary contribution. It is a peculiar inconsistency that municipal governments receive no central budget transfer whatsoever for the performance of minority related duties. For this purposes special appropriations should be included in the budget act of every year.
Similarly to the financing of minority self-governments, the compensation to municipal governments should be differentiated, taking into consideration the number of minority inhabitants, the tasks undertaken and the principle of equity.
3.
Financial management of minority self-governments, the financing of their
operations
We asked minority self-governments about the source of their funding, about the purpose of expenditures in the years 2000 and 2001, as well as the revenues and expenditures they expected in 2002. We were interested in the proportions rather than the actual amounts, so that we can obtain an approximate view of the structure of revenues and expenditures of minority self-governments.
Revenues of minority self-governments
a) For minority self-governments the largest, and single certain, revenue item is the normative state grant, representing some 71-78% of their budget.
The normative state grant is the most significant source of income for the Gipsy minority self-governments of Baranya and Szabolcs, in the overwhelming majority of the cases this being the only source. This is essentially also true for small villages and small settlements, where the minority self-governments in mostly under-funded settlements must manage their finances almost exclusively within the narrow constraints of the normative state grant.
b) Depending on their funds and capabilities, municipal governments may provide assistance to minority self-governments from their own budget. According to the questionnaires returned by minority self-governments, the funding given by municipal governments is rather stable and modest within the revenues of minority self-governments (13%). The responses of municipal governments reveal that 37% of them have provided continuous financial support to minority self-governments ever since they were formed. In other words, the willingness of municipal governments to provide funding appears to be higher in the light of the responses of municipal governments than according to the minority self-governments.
74% of municipal governments provide funding to minority self-governments from their own budget based on one-off decisions, while 26% have set up some kind of fund – minority, civic – for this purpose. The considerations in deciding the amount of such grants fall into three distinct categories (of course several of them could be present at the same time in the responses). One category of considerations focuses on maintaining the operability of minority self-governments; the other strives to reconcile the demands of minorities with the capabilities of the municipal government. In the third typical scenario the municipal government decides about the grant and its amount based on its own discretionary view of the objective stated by the minority self-government, whether it is “justified”, “expedient”, “useful”, “legitimate”, practicable, “implementable” and “economical”.
Minority self-governments operating in larger settlements or towns receive a considerable level (43-50%) of supplementary grants. This is the reason for the large level of grants reported by “small” minorities, which were present in the survey in small numbers: these self-governments are located in towns and county seats.
In towns and county seats typically there are several minority self-governments in operation and the amount and distribution of grants depends on the outcome of the bargain between the municipal government and the minority self-governments. The dispute over the legitimate and fair distribution of municipal government grants is also mirrored in the considerations relating to the desirability of normative state grants; leaders of small minority communities would favour equal distribution while the leaders of larger communities would support distribution based on the number of inhabitants or on the tasks performed.
The amount of grants from municipal governments generally increases in parallel with the number of inhabitants in the settlement, and so does the total funding available to the minority self-government. Of course it is a controversial issue among minority politicians as well whether the greater discretionary powers offered by the grants from municipal governments entail greater dependence on the municipal government. This depends on the generosity of the leaders of the settlement and on whether the minority self-governments are considered equal partners.
c) The funds available through application are, as we noted above, rather haphazard, depending on the application activity of minority self-governments and the success of their applications. Even against the background of these uncertainties, such funds represent 5-10 percent in the budgets of minority self-governments.
Because of the characteristics of the calls for applications, self-governments representing national minorities tend to submit applications on their own, while Gipsy minority self-governments have a tendency to apply jointly with the municipal government.
In the case of joint applications it is important to understand how much the co-operation of the municipal government and the minority self-government is based on the principle of equal participation of the parties. We received in-depth information about 35 joint applications only, in case of 54% of which the minority self-government reported that they participated in the identification of application objectives, the preparation and implementation of the project as well. The survey appears to indicate that municipal governments are less inclined to consider Gipsy minority self-governments in Baranya (50%) and especially in Szabolcs (40%) as equal partners.
Minority self-governments in small villages and towns indicated that their participation in joint applications is merely formal, and it is a frequent complaint mainly in the smaller settlements that even though the minority self-government would have liked to submit a joint application, the municipal government flatly refused to do so.
We enquired about the minority self-governments’ assessment of the system of assistance through public foundations, whether they consider the amount of funds made available by the state to public foundations sufficient. The responses to the open question indicate dissatisfaction with the present application system of public foundations. 10 Every minority self-government emphasises the scarcity of funds available/distributable as the fundamental problem, though some voiced the view that there is enough money, but its distribution is unjust; many applications are “failures”. Still others hold that the basic problem is the intransparency of the public foundation system and the award of assistance as well as the absence of social control over information and the application system.
d) The proportion of own revenues coming, for instance, from business activities or rental, is the most negligible (4-6%) within revenues. This seems to imply, in concert with the findings of previous research, that the minorities are (still) unable to exploit the opportunities provided in law, and hardly any of them have established business activities to increase their revenues and reduce their dependence on central or municipal government grants.
Expenditures of minority self-governments
Within the expenditures of minority self-governments the expenditures relating to operation (38-40%) and technical expenses (37-38%) are approximately on the same level, while the ratio of labour expenses (20-22%) is rather low.
a) Starting more in-depth analysis with labour costs we find that most of the chairpersons and representatives of minority self-governments work for free because if they were to draw remuneration, no funds would remain from their tight budget for operating expenses and discharging their fundamental duties. The persons who do collect remuneration receive no more than a few thousand Forints per month of (additional) income from this source. Roma politicians in Szabolcs also reported that sometimes they give their remuneration to the needy, donating it to some welfare purpose. Irrespective of their minority community, several respondents noted that it would be necessary to regulate in law at least the remuneration of chairpersons, at the same time resolving the issue of the legal status of minority representatives.
It is a well known fact, also underscored by this survey, that the ratio of labour expenditures increases in proportion to the size of the settlement, that is, the minority self-governments operating in larger villages, and mostly in towns or county seats, can afford to pay remuneration to their members – even more so as they have additional resources beyond the central state normative grant due to the support of the municipal government.
b) Operating expenses constitute the majority of the expenditures of minority self-governments. Apart from utility costs, this includes the expenses related to the cost reimbursement of representatives; this generally means the partial payment of the car and mobile telephone bills. This is most common among chairpersons and representatives in towns, often as a supplement to their remuneration.
c) The ratio of technical type expenditure is the lowers in the Gipsy self-governments of Baranya and Szabolcs, the highest among Croatian and “small” minorities, and higher than average among German minority self-governments.
The ratio of technical expenditures appears to increase in proportion to the number of inhabitants of the settlement, which is due to the fact that in larger settlements the greater amount of funds allows, and the higher number of NGOs and educational institutions demand, more intensive (financial) participation of minority self-governments in the lives of the minority community. On the one hand, technical type expenditures are closely related to the financing of activities within the scope of cultural autonomy: the preservation and instruction of the language and traditions, tasks relating to nationality education, occasionally the maintenance of external relations, the establishment of cultural associations and/or support to their activities. On the other hand, and this is characteristic typically of Gipsy minority self-governments – though naturally sometimes other minority self-governments also distribute packages to pensioners and/or children – technical expenditures consist in welfare expenditures, even if this aid distribution transgresses the borders set by the Minorities Act. The Gipsy minority self-governments participate in the organisation, tendering for, and implementation of, communal work programmes, social land programmes, the financing of the school enrolment, kindergarten and school meals of children, the acquisition of fuel for families in need and the distribution of funeral aid.
“Return funding” from minority self-governments
We asked municipal governments whether there have been instances where the minority self-governments transferred funds to the municipal government. 33% of the responding municipal governments reported that the minority self-government had given them funds, 67% answered in the negative, thus the practice of return funding is not wide spread but is still significant. The smaller the settlement where the minority self-government works, the more frequent the return of funds. According to the municipal governments, the funds of minority self-governments were needed for the implementation of common objectives (28 mentions), while only 4 respondents mentioned the real reason, which presumably plays a role almost everywhere, i.e., the lack of funding in the settlement. In 5 instances the purpose of the transfer of funds was the development of the urban infrastructure, in 7 cases the maintenance of institutions, while in 16 cases the municipal governments identified other objectives.
These other objectives fall into two distinct categories. The self-governments of national minorities contributed to the operation of the settlement for instance by building the wall of the cemetery, the purchase of a photocopier, or contributing to the expenses of the organisation of a joint village festival. In contrast, the Gipsy minority self-governments, even if they mention the financing of joint events, transferred funds to the municipal governments primarily so that the latter can provide welfare benefits to members of the Roma community. Roma minority self-governments support indirectly, through the municipal government, the school enrolment of Roma children, the start of their school year, the occasional aids to families, their subsidised housing construction or purchase, or the own contribution to the social land programme, because the law does not vest social powers in them.
Autonomy of minority self-governments in financial management
Under the present rules the normative grants for minority self-governments are remitted to the account of the municipal government quarterly, and the municipal government then transfers them to the account of the minority self-governments. According to the responding minority self-governments the overwhelming majority of municipal governments assure that the grant is at the disposal of minority self-governments in time. Minor problems settled later or the municipal government holding back the state grant were reported by 7 or 5 percent of minority self-governments, and in one instance they indicated that the municipal government failed to remit the normative grant owing to the minority self-governments. We also asked the municipal governments if there had been complaints about the remittance of the state grant; 93% of them responded that they assured that the normative grant was available to the minority self-government in time.
80% of the minority self-governments have a subsidiary account subordinated to the budgetary account of the municipal government, and only 20% have independent accounts. According to the responses of municipal governments, 78% of the minority self-governments have subsidiary accounts to the budgetary account of the municipal government while 22% maintained their own independent account from their own budget. In this respect the data in the minority questionnaires were confirmed by the municipalities; the self-governments of national minorities have show the highest ratio of independent account ownership (40-50%), and the ratio of independent account holders is considerably higher among the Gipsy self-governments of Baranya (31%) than in Szabolcs-Szatmár-Bereg county (only 11%).
The elaboration of the budgets of minority self-governments
Minority self-governments adopt their own budget resolution themselves, which must then be incorporated into the budget bylaw of the settlement. Thus the detailed rules and procedures of the co-operation between the municipal government and minority self-governments in the course of the approval of the budget must be laid down in an agreement.
We asked whether the municipal government consulted the minority self-government in the course of the budgeting process. Most minority self-governments (68%) indicated that the two governments always held consultations and they always reached an agreement. Successful co-operation between the two entities was more common among the German (82%), Croatian (71%) and “small” minorities than in the case of the Gipsy minority self-governments of Szabolcs (59%) and Baranya (53%). Apparently consultation was more frequent and agreement more likely in larger villages, towns and county seats (83%) than in smaller settlements, in particular small villages (63%).
According to the responding municipal governments, 74% of them regularly consult minority self-governments in the course of the budgeting process and the consultations result in an agreement. Regular and successful consultations are least typical (53%) in case of the Gipsy self-governments of Baranya. The absence of consultation between municipal governments and minority self-governments was noted, consistently with the above, by the Gipsy minority self-governments of Baranya and Szabolcs, as well as minority self-governments operating in small villages or small settlements. Most of the respondents identified the rejection/hostile attitude of the municipal government as the cause of the absence of consultation.
The questionnaires filled in by municipal governments also underlined the correlation between the number of inhabitants of the settlement and the consultation or absence thereof; successful consultations are more common in larger settlements while co-operation in the budgetary process is less frequent between the minority self-governments and municipal governments of small villages. The importance of the size of settlement is also indicated by one group of responses to our question about the reason for the absence of consultations. According to this reasoning the under-funded municipal governments often face liquidity problems, which does not allow them to support minority self-governments, therefore they see no point in consultations.
The lack of consultation may also be attributable to the passivity and disinterest of the minority self-government (or its chairperson), while the lack of success may also be related, as the answers reveal in connection with Gipsy self-governments, to excessive demands of the minorities, which are impracticable given the limited financial resources of the municipal government.
On the other hand, the town clerk or other employee of the mayor’s office regularly provides assistance in drafting the resolution on the budget of the minority self-governments. 82% of the minority self-governments requested and received help in this respect, with no variance among the various minorities, while 13% did not ask the town clerk or other financial expert for assistance as they managed on their own. Minority self-governments reported only two cases where they asked technical help for the preparation of the budget resolution but did not get it due to indifference.
94% of the responding municipal governments noted that the town clerk or an employee of the mayor’s office provide assistance to the preparation of the draft budget resolution of the minority self-government either because this is requested by the minority self-government or, as the respondent noted in connection with a Gipsy self-government, “they are unable to draft a resolution on their own”. The minority self-governments asked for no help from the town clerk or the staff of the mayor’s office for the drafting of their budget resolution in only 5% of the settlements.
The representative body of the municipal government has no decision making powers in respect of the budget of the minority self-government, it cannot change the appropriations and cannot take away funds. 97%, the vast majority of the responding minority self-governments answered negatively to the question whether the municipal government had violated these rules. Three minority self-governments mentioned that they did not always have access to their money when they would need it as the municipal government has no cash available. However, the findings of our interviews appear to indicate that such instances are more common than the answers to the question would make us believe. 98% of municipal governments answered negatively to the question if they had changed the appropriations in the budget of the minority self-government, or if they had taken funds from the minority self-government. We need to reiterate that in the opinion of the authors the situation is far less favourable than the answers would suggest; in any event, it is not uncommon that the municipal government, even if only temporarily, uses or holds back the funds of minority self-governments.
Assessment of the system of financing of minority self-governments
The financing of minority self-governments has been controversial since the beginning, and our data reveal that the stakeholders are far from satisfied with the current practices. One reason for dissatisfaction is the provision whereby every minority self-government in the country receives the same amount of normative grant. 64% of minority self-governments and 60% of municipal governments think that differentiated normative state grants would be needed. Considerably more argue for the necessity to change the current system of grants (almost twice the number of those who agree with the present system).
In this respect there is an apparent conflict of interest between the self-governments representing large national and ethnic minority communities and those representing “small” national minorities: while the latter consider the equally distributed state grants to be equitable and just, the self-governments of more populous minorities argue for grants in proportion to the size of communities and/or scope of tasks undertaken.
Obviously a number of obstacles must be overcome to find a solution. Differentiation according to the number of persons belonging to the community raises the sensitive issue of registration, while grants proportionate to tasks would assume some sort of control over the activities of minority self-governments and the incorporation of sanctions into the system. The minority self-governments operating in towns and large villages reasonably argue that they must support more institutions and organisations, whereas the under-funded small villages or small settlements are also right in pointing out that they must bear proportionately larger burdens to assure the operation of the minority self-governments. Consequently, if switching to a differentiated grant system, the highly diverse conditions as well as the consideration of equity must be taken into consideration while the fundamental conditions of operation must also be assured.
It is clear though that there is intense demand for a change; 69% of minority self-governments think that the present financing system does not provide for sufficient autonomy for the minority self-governments. The dissatisfaction is fuelled not only by the equal normative grant system but also by the small amount of the grant and the financing difficulties arising from the quarterly transfers.
The views of the responding municipal governments are fundamentally different. The overwhelming majority (64%) holds that the present financing system provides adequately for the autonomy of minorities, and only 36% think that the systems should be amended.
According to 40% of the minority self-governments the autonomy of the self-government would also be strengthened if they were to receive the state grant directly rather than through the municipal government. The Gipsy self-governments were the least satisfied with the present regulatory framework in both counties (41% in Baranya, 42% in Szabolcs); this is not really surprising in light of their dependence on the municipal government and the limited financial autonomy. Half of the minority self-governments in small villages think that the regulation is not beneficial for them; in this case the number of self-governments rejecting the system is relatively high presumably because under-funded municipal governments more frequently “use” the normative grants addressed to minority self-governments.
83% of municipal governments think that the current practice of getting the state grant to minority self-governments through the municipal government is appropriate, a rate much higher than in the case of minority self-governments. The arguments for and against (a total of 60 reasons, from 43 settlements with Gipsy self-governments) also reveal why the majority thinks it appropriate for the minority self-governments to receive the state grant with the intermediation of the municipal government. The responses highlighted the infringing practice that this allows municipal governments to have direct information about, and the possibility to influence, the financial management of minority self-governments. It is a recurring argument primarily in connection with Gipsy minority self-governments (20 opinions) that “this is the way to assure control over the use of public funds”, and that the members of the minority self-government are “not always ready for full financial independence”. Thus one of the sources of satisfaction with the present system is the more or less implied distrust of – mostly Gipsy – members of the minority self-governments. Fewer respondents emphasises the importance of professional assistance, namely that minority self-governments have no financial experts of their own, therefore it is the obvious – economical, rational and safe – solution for them to rely on the expertise of the staff of the mayor’s office. Arguments in favour of the present system referred to co-operation in three cases only, saying that it necessitated the co-operation of the two entities (municipal government and Gipsy self-government) to a certain extent, or (and this was voiced only in connection with the German self-governments) this was necessary for joint planning. The few (only eight) respondents who argued against the present regulations think that this is not conducive to the attainment of real independence and autonomy.
The views on the financial support given by municipal governments is more uniform, 79% of the minority self-governments thinking that this provides security to them and only 13% seeing it as a factor increasing the dependence of minority self-governments. (The rest of the respondents reported that they received no financial support from the municipal government.) The increase of dependence is a concern mostly for Gipsy minority self-governments, primarily in Baranya. Approximately one quarter of the respondents did not even answer the question whether the support received from the municipal government increased the dependence or the security of minority self-governments (presumably because they received no support). 80% of the responding self-governments hold that this promotes security, and only 20% think that the financial support of the municipal government would curtail the autonomy of minority self-governments. Financial support, or “assistance”, from the municipal government promotes security (42 justifications) because it supplements the insufficient state funds, thereby guaranteeing the operation of minority self-governments, which have more funds available to finance their tasks.
Summary, comments
Pursuant to Article 68 (3) of Act XXXVIII of 1992 on the General Government, the municipal governments and local minority self-governments must record in an agreement the detailed rules and procedures governing their co-operation in the elaboration of the draft budget and the adoption of the budget bylaw. As noted above, our survey indicated that 68% of the minority self-governments and 74% of the municipal governments responded that the two entities always consulted in the course of the budgeting process and reached an agreement. In the remaining cases the municipal government approved the budget in violation of the law, without the required co-operation agreement. These data point to deficiencies in the present system of control; in addition to the timely approval of the budget, the conditions of approval should also be examined.
The survey confirmed our position, which we have voiced on several occasions, that the issue of financing is one of the major problems and a fundamental deficiency in the system of minority self-governments. The state grant covers the operating expenses of minority self-governments at a minimal level only. Without the support of municipal governments, relying only on unforeseeable application funds, minority self-governments are unable to perform adequately their tasks promoting their cultural autonomy. It is unacceptable that the state should fail to provide the funding required for their tasks. The equality of grants to every minority self-government results in imbalances. We should re-emphasise these survey findings: according to 69% of the responding minority self-governments the present financing system does not adequately assure the autonomy of minority self-governments. 64% of the minority self-governments and 60% of the municipal governments in the sample thought that differentiated state grants would be needed. In view of this, we recommend that in the course of the amendment of minority legislation, a new, differentiated financing system is devised, which would take into consideration the size of minority communities, the differences in the tasks performed and the principle of equity arising from the different positions of settlements.
4.
Co-operation of the minority self-governments and municipal governments
The co-operation agreement, the formal framework of co-operation
We mentioned in the previous section that the municipal government and minority self-government are obliged to conclude a co-operation agreement in conjunction with the approval of the budget. However, these two entities may conclude co-operation agreements on any issue related to minority rights.
73% of minority self-governments answered affirmatively to the question whether the municipal government and the minority self-government had concluded co-operation agreements, and another 6% indicated that the preparation of such an agreement was in progress, while 20% had no co-operation agreement.
74% of the responding municipal governments had co-operation agreements with the minority self-government, 8% reported that the preparation of the agreement was under way, and 18% had not made such agreements. Official agreements were the least common in case of Gipsy (53%) and Croatian (50%) minority self-governments in Baranya. The larger the settlement, the more likely the two entities to have a written agreement governing their co-operation. In this respect the responses of minority self-governments and municipal governments were essentially identical.
The agreements were limited almost exclusively to budgetary, financial management and funding issues. These documents tend not to regulate other important areas of co-operation such as participation in meetings and committees, or conflict resolution in cases of differences in opinion or views, thus co-operation depends on the goodwill of the two parties, primarily of the municipal government.
Representation of minorities on the committees of municipal governments
According to the – identical – opinion of minority self-governments and municipal governments, the members of minority self-governments can participate in the work of committees operating beside the municipal governments to a limited extent only.11
When analysing the limited participation in the work of committees we must be aware that in small villages and small settlements there are no committees alongside the representative bodies, which consist of few members themselves, and committee work is important in large villages and mostly in towns. In our opinion derived from the questionnaires and interviews, even in light of this fact the number of minority representatives participating in the work of committees of local governments is very low.
Most of the minority chairpersons and representatives consider it a grievance that they cannot participate, or can participate only in limited numbers and with limited powers, in the work of committees responsible for the preparation of important decision of the municipal governments.
In the work of committees national minorities typically focus on issues of culture and education – these fields are most directly related to the intended cultural autonomy, whereas the representatives of the Gipsy community are involved in committee work almost exclusively in social areas. Even though the poverty afflicting the Roma justifies active participation in the work of the social committee, and the minority self-governments require that participation, the selective and restrictive interpretation of “minority interests” is shown by the fact that the Roma have no real opportunity to participate in the work of cultural or educational committees and that minority self-governments cannot, or can very rarely, participate in the preparation of important development decisions of the settlement. Participation in the work of economic or urban development committees is a possibility typically for minority representatives who also have mandates on the municipal government.
Participation of minority self-government representatives in sessions of municipal governments and the problems of closed sessions
According to the questionnaires returned by minority self-governments, in 70% of the self-governments the chairperson or a representative substituting for him participates in the sessions of the municipal government regularly, 19% occasionally, and on 11% reported that they never attended municipal government sessions. The chairpersons and representatives of national minority self-governments participate regularly in municipal government meetings in much greater numbers than the leaders or members of Gipsy self-governments in Baranya and especially in Szabolcs.
We also asked municipal governments how frequently the minority chairpersons or their deputies attended the sessions of the municipal representative body. The answers revealed that only 55% of municipal governments invited minority politicians regularly to their sessions, though they reported occasional participation of minority representatives at a similar rate to minority self-governments (18%), and 18% responded that the chairperson or representative substituting for him is invited to sessions of the representative body only if issues important for minorities are on the agenda. Only 5% replied that minority politicians never attend municipal sessions because they are not invited or if invited, they do not turn up.
If the minority chairperson or representative is present, he can express his views, positions, proposals on all issues he considers important in 76% of the cases. On the other hand, 17% of the minority self-governments reported that the chairperson was allowed to comment only on issues relating to the minority concerned. Four minority self-governments indicated that they are never allowed to make comments at sessions of the municipal representative body.
In contrast, 88% of the responding municipal governments said that the minority chairperson or his substitute was always and on every issue allowed to express his views, and only 10% noted that the minority chairperson was given the floor only in connection with issues pertaining to the minority.
The representative body of the municipal government may invite the chairperson of the minority self-government to its closed sessions; according to the minority questionnaires, 46% was allowed regularly to attend closed sessions of the municipal government, while 23 % can do so occasionally, and 31% never attend such meetings.
When evaluating the ratio of chairpersons invited to closed sessions we must be aware that their numbers include the minority chairpersons or other representatives who are at the same time members of the “large” representative body as well. Naturally they attend the closed sessions with voting rights. The Gipsy (60%) and German (54%) minority chairpersons of Baranya were most frequently invited to closed sessions while the leaders of Gipsy self-governments in Szabolcs can participate in these meetings must less frequently than average – mostly because they are not invited. However, the responding minority self-governments also noted the fundamental problem that the legal regulations are ambiguous: it depends on the interpretation and goodwill of the municipal government whether the representatives of minorities are allowed to attend closed sessions.
34% of municipal governments fail to invite the chairperson or his substitute to the closed sessions of the representative body reasoning that this is not mandatory pursuant to the Act; this response was most common in settlements in Szabolcs (43%). On the other hand, 45 percent of municipal governments allow the representatives of minorities to attend closed sessions: 36 percent do so because this is allowed in legislation, 6% because this is provided in the organisational and operational rules, while 3% because they consider the minority representative to be an expert.
The division of tasks and functions
Minority self-governments may take on, and municipal governments may transfer, certain tasks and functions which promote the more effective enforcement of minority interests and the attainment of cultural autonomy. However, legal regulations do not allow minority self-governments to exercise regulatory powers; therefore the assumption of such tasks and functions is legally not allowed.
91% of minority self-governments have not assumed and 92% of municipal governments have not transferred any task or function. While if the appropriate financial and technical conditions are provided, 28% of minority self-governments would be willing to take on certain functions, this willingness is not matched by the receptiveness of municipal governments as only one of them indicated that they would be willing to transfer the organisation of communal work projects totally to the Gipsy minority self-governments.
In justifying their negative answers municipal governments generally claimed that they had not encountered any demand for the assumption of functions or that the requisite personal, material and financial conditions are not present on the side of the minority self-governments.
However, it is essentially only the Gipsy minority self-governments that must face problems relating to welfare benefits and local employment. Municipal governments involved minority self-governments mostly in the organisation of public and communal work and in the drafting of the social bylaw, or the minority self-government could exercise its right to comment when that bylaw was adopted. There are only rare examples for the regulation of the participation of minorities in the exercise of social functions and in the organisation of public and communal work in the co-operation agreement between the municipal government and the minority self-government. In cases where the minority representative is also a member of the municipal representative body, thus has a vote on the social committee, participation is automatically assured.
36% of the minority self-governments reported that the minority citizens (30%) and/or the municipal government (6%) raised demands to them for which they have neither the competence nor the financial resources. Almost exclusively Gipsy self-governments need to face the pressure of impracticable expectations.
The often hopeless, deep poverty of the Roma population explains why they also expect the minority self-government to improve their conditions and help them break out of the state of exclusion. Voters have more than once alleged that they receive no welfare benefit or cash aid because the minority leaders use for their own benefit, or put into their own pockets, the funds they receive from the state or occasionally from the municipality. This mistrust is partly the reason for the vulnerability of the Roma self-governments and the high turnover of representatives. The Gipsy minority leaders who formed the self-government in the belief that they would be able to directly help those in need see no point in continuing working in the self-government.
Overall assessment of co-operation
We asked the minority self-governments about their overall assessment of their success in representing the interest of minorities and their evaluation of the co-operation with the municipal government. 51% of the minority self-governments think that they are fully successful in assuring that the municipal government take into consideration minority interests in its decisions. 29% thought that they could attain this only in part and on occasions, while 20% responded that they were not successful at all because the minority interests are not reflected in the decisions of the “large” representative body. Naturally, the municipal governments again painted a more favourable picture about themselves than the minority self-governments did. 76% of them claim that in their decisions they take into consideration the minority interests fully, while 24% did this only partly, that is, not in every case, and, naturally, no one reported to completely disregard such interests.
We can see the difference between national minorities and Gipsy minority self-governments in the assessment of the co-operation as well, as the latter much more frequently described the relationship of the two entities as not very good, or essentially bad. The more populous the settlement where the minority self-government operates, the better the assessment of the relationship.
In the opinion of the municipal government politicians, the relationship between the two entities depends primarily on the willingness of the parties to compromise. The respondents to the questionnaire stated this factor exclusively in the context of the co-operation with the Gipsy minority self-government. Furthermore, the success of co-operation also depends on the talent of leaders and personal contacts, as well as on whether common interests and objectives can be identified, which can be attained only by jointly deciding and implementing tasks.
Summary, comments
In the view of minority politicians one of the grievances inherent in the system is their own unclear legal status. This problem is related to the dilemma of the allocation of functions and to the quality of co-operation between minority self-governments and municipal governments. Minority politicians consider it necessary at least for the chairperson to have a right to attend and vote at the meetings of the municipal governments. The minority self-governments have regrettably limited opportunities to participate in the decision preparation work of committees operating alongside the municipal governments, and 31% also indicated that they can never attend closed sessions. They consider this latter especially disconcerting because the effective legal regulations do not preclude their participation in closed sessions, therefore they consider the rejection of municipal governments to reveal distrust of minorities.
We have made recommendations for the participation of minority self-government representatives in closed sessions for years. In view of the findings of the survey, we must repeatedly call attention to the need to resolve this indignity when amending the ARNEM, especially in view of the fact that Article 40 (1) a) of the ARNEM provides for the participation of the local spokesperson of minorities in the closed sessions of the municipal representative body. According to the minority self-government leaders, the success or failure of the relationship and co-operation of the minority self-government and the municipal government is primarily a function of the willingness to joint forces, to co-operate and to reach compromises, as well as the personality, prestige and personal relations of the key actors, the chairperson and the mayor.
However, in addition to these factors, clear legal regulations are also important. It would be expedient to amend or supplement the rules governing co-operation so that they not only state the possibility or obligation of co-operation but also specify safeguards for its implementation. As long as the regulations do not provide adequate tools and sanctions to make municipal governments respect the rights of national and ethnic minorities and to support the operation of minority self-governments, everything is left to the goodwill and co-operation intentions of the parties, primarily the municipal government.
5.
Maintenance of institutions
The Act allows minority self-governments to establish their own cultural or educations institutions or to take them over from the municipality; the maintenance of these may be the cornerstone of their cultural autonomy. On this issue our findings reinforce previous studies. In our survey the responding minority self-governments in their questionnaires mentioned on only 16 occasions that they maintain some institution, but this mostly means that the minority self-government supports the cultural or traditional associations, dance ensembles, orchestras in their settlements, or less frequently a community centre, while educational institutions were mentioned in two instances, one of which means the financing of a national minority club.
In contrast, municipal governments reported on only six occasions that the minority self-government maintained some institutions, primarily in the field of the cultivation of traditions or culture. We received no further information about these or the experiences with their operation.
In any event, the demands of minorities go beyond their current possibilities. 15 self-governments responded that if it was facilitated by legislation as well as the budgetary rules, they would maintain educational institutions, ten would be willing to run institutions in the field of cultural education or culture, typically meaning community centres, while nine minority self-governments reported that they would like to have independent institutions in the field of social benefits or local employment.
As we have come to expect, municipal governments are not overly receptive towards minority demands. Only three of them stated that they would be willing to transfer to the minority self-government some institution working in the field of education, the fostering of traditions or culture. In response to the question why they would not want to give the maintenance of institutions to the minority self-government, three typical categories of answers were received (a total of 52 responses were given). Mayors/town clerks declare without any explanation that “there is not demand”, “no need” to transfer the institutions, sometimes noting that the municipal government is perfectly able to maintain its basic institutions. Others mention objective constraints and capabilities: “there is no institution” that could be transferred; the “number of minority children does not justify” considering the transfer of educational institutions, and some also warn that the legislative background is missing, and the financial safeguards of maintenance/operation are not present either. The third group of respondents argue that if the institutions were transferred, their maintenance would “be in danger”, “would not be assured”, because there is no “expertise” on the side of the minority self-government, and they do not have the “personal and material conditions”.
A survey conducted in 1997 already revealed that the proportion of minority self-governments (37%) that would consider it necessary to maintain independent minority institutions is larger that the proportion of municipal governments that would consider this justified (20%).
Our experiences show that in small settlements and villages the maintenance of cultural education, cultural and community institutions (e.g. Gipsy community centres in Szabolcs-Szatmár-Bereg county), or cultural societies could be realistic tasks if the appropriate financial conditions were provided. Gipsy minority self-governments would demand more discretion in the fields of social services and local employment. Even though smaller settlements also noted that they would be willing to maintain educational institutions, the requisite technical and personal conditions are present mostly in towns or cities. In these settlements the system of institutions is differentiated enough so that an independent kindergarten or school “does not infringe upon the majority interest”, while in villages or small towns where there is a single education institution, often serving a whole district, the leaders of the settlement would be unwilling to transfer the operation of the institution for this reason. True, the minority self-governments in such locations did not indicate their intentions to maintain institutions either.
Summary, comments
The survey has confirmed our experiences that, even though pursuant to Article 27 (3) of the ARNEM the minority self-governments may, within their own sphere of competence and the existing framework, may establish and maintain institutions, they are generally unable to exercise these rights. When drafting the ARNEM, the legislator may have started from the assumption that within a few years minority self-governments, given appropriate state funding, could take over the operation of the minority education and cultural systems. However, the legally enshrined rights provide only theoretical possibility for the foundation and transfer of institutions as the financing of the maintenance and operation of institutions is still unresolved, and the minority self-governments are not yet in a position to continuously discharge this duty. Our survey also clearly revealed that the municipal governments are not overly receptive to the idea of transferring institutions. In addition to the absence of legislation and financial guarantees, they also question the necessity of this measure and the existence of a demand on the side of the minority community.
In view of the above, in the course of the further development of the minority legislation, the specific legislative framework and forms of financing must be created for the minority self-governments to become maintainers of institutions, especially in the fields of local public education, local printed and electronic media, the fostering of traditions and cultural education.
6.
The application of the right of petition, initiative and approval
Petition
The majority of the responding minority self-governments exercised its right of petition, mostly towards the town clerk (65% of the responses were affirmative), to the mayor (54%), the municipal representative body (46%), in fewer cases to the county Public Administration Office (24%), and even less frequently (12%) to some ministry – primarily to the Ministry of Social and Family Affairs – or to other institutions or entities: the parliamentary commissioner, the child welfare service or the national self-government. Minority self-governments typically submitted request in three subject areas: on technical, legal or financial problems, issues, tasks relating to the operation of the minority self-government, in the area of welfare benefits, subsistence or employment problems, as well as on issues relating to minority education, culture or cultural autonomy.
Most of the minority self-governments considered the proceedings of the public administration body concerned appropriate: they reported that they were satisfied because they received responses within the statutory time limit and in the appropriate tone; however, 17 minority self-governments found the proceedings unsatisfactory.
Only 20% of the responding minority self-governments reported that even though they encountered instances where it would have been justified to exercise their right of petition, they did not do so. The reason for refraining from making a petition was the fear of the escalation of the conflict and concerns for the breakdown of relations between the two entities.
Initiative
Minority self-governments turned to the municipal government with initiatives mostly relating to welfare benefits, support to those in need and employment. The Gipsy minority self-governments of Szabolcs-Szatmár-Bereg County often initiated infrastructure developments in streets and estates inhabited by Roma, and some self-governments also initiated the speedy resolution of problems caused by the flooding of the Tisza river. Another larger group of initiatives relates to minority culture, the protection of historic monuments and education, and considerably fewer pertain to the operation of minority self-governments and conflicts between the two governments. In most of the cases the municipal government received the initiatives appropriately, discussing them at the next session of the representative body and, as far as possible, taking substantive measures. (Minority self-governments indicated in 32 cases that they are satisfied with the proceedings of the municipal government, while in 18 instances they voiced their dissatisfaction.)
According to the responses of municipal governments, the subject of initiatives received from minority self-governments was similar to that of petitions; sometimes the same case was mentioned in response to both questions. The municipal governments resolved the problems or helped in the resolution of issues mentioned in the initiative as far as they could.
The right of approval or disapproval
From among the co-decision powers, in our survey we looked into the most powerful legal instrument available for the implementation of the cultural autonomy of minorities: the right of approval or disapproval (veto). We have no data available concerning the right of comment.
The municipal government may adopt bylaws in areas significant for the cultural autonomy of minorities and the enforcement of minority interests only with the consent of the minority self-government. One quarter of the minority self-governments gave no appraisable response to the question enquiring into this matter. 56% of the responding minority self-governments indicated that the municipal government always consulted them during the adoption of bylaws, while 22% each responded that the municipal government sometimes, or never, made it possible for the minority self-government to exercise its right of approval. Again there is a significant difference between national and Gipsy minority self-governments, which is a function of the relationship of the two entities being generally good, based on partnership or bad, based on inequality. Gipsy minority self-governments, mostly in Szabolcs-Szatmár-Bereg County, can exercise their right of approval much less frequently and in a more limited scope than German and Croatian self-governments can.
Municipal governments responded on 87 occasions that they had adopted bylaws on some areas relating to minority autonomy. 44% of those returning the questionnaire did not answer the question whether the municipal representative body had consulted the minority self-government before adopting bylaws. In contrast, the overwhelming majority of respondents (72%) claim that the minority self-government could always exercise its right of approval.
The questionnaire also contained a question about whether the minority self-government could exercise its right of approval concerning the transformation or closing of educational institutions, the approval/amendment of the organisational rules or range of activities of such institutions, the approval its budget, the appointment or dismissal of its chief executive, the elaboration or assessment of the pedagogical programme of the school. 20-25% of the minority self-governments returning the questionnaire gave no response to this question, while 30-50% stated that the municipal government adopted no decisions on such issues in this election term. Minority self-governments can most frequently exercise their right of approval when defining the educational programme of minority educational institutions, the approval of their budgets and the appointment or dismissal of their chief executives.
Minority self-governments indicated in a few instances in every field that even though various minority education related decisions were adopted by the municipal representative body, they were unable to exercise this fundamental right. (A total of 85 such instances were reported.) As to the reasons, they mentioned that the municipal representative body did not consider minority self-governments their equal partners, they do not consult them, or even if they do, their views are not taken into consideration, and in some instances, for example in connection with the appointment of the head of an institution, the local assembly questions the right of the minority self-government to approve.
On average, 30-50% of municipal governments gave no response to the question whether the minority self-government could exercise its right of approval in connection with certain issues relating to minority education as explained above, and 50-60% reported that in the past election term no decision requiring the approval of the minority self-governments was taken. Where such decisions were taken, they were mostly related to the approval of the pedagogical programme of the minority educational institutions, the assessment of its implementation, the approval or amendment of the organisational and operational rules of the educational institution or the evaluation of the professional performance of kindergartens or schools. Municipal governments mentioned on only eight occasion that they did not involve the minority self-governments in a decision as would have been appropriate, but only three responses were received to the question why the minority self-government was unable to exercise its right of approval. In other words, the municipal governments think that the exercise of the right of approval of minority self-governments is fundamentally in order.
Less than half, 43%, of the minority self-governments declared that the two government entities regulated the exercise of the co-decision (approval, commenting) rights in some manner (e.g. in the co-operation agreement). A smaller percentage of municipal governments reported having some form of regulation of the co-decision procedure; 19% responded affirmatively.
Nevertheless, presumably the exercise of co-decision rights has not been regulated even where the minority self-governments and municipal governments claim to have such regulations. On the one hand, because, following the sample in the commonly used manual, the co-operation agreement between the two bodies covers almost exclusively the budget and financial management of the minority self-government, while the operational and organisational manual governs the internal procedures of the minority representative body. On the other hand, our suspicions are fuelled by the fact that only five minority self-governments and three municipal governments noted that the two entities have established rules for the event if they fail to agree. Even in these cases, they would continue negotiating until a consensus is reached. However, according to the minority self-governments sometimes, in line with the effective power structure, “the will of the municipal government prevails” or “nothing happens”:
The majority of minority self-governments (two thirds of the respondents) may exercise their co-decision rights by adopting a decision or position on the issue, then the chairperson or another representative presenting this at the session of the municipal representative body. Joint meetings of the two representative bodies are rarely held, and barely any respondents (two each) claimed that there was no co-operation whatsoever between the two entities. (40 minority self-governments did not answer the question.) 65% of the minority self-governments stated that the municipal government provided the statutory time limit (30 days) for the minority self-governments to express its opinion or consent. The ratio of negative or absent responses was equal at 17% each.
The responding minority self-governments made use of the right of veto in only 8 cases, five of them replied that even though this would have been necessary, they did not resort to this ultimate legal power, and only one municipal government reported that the minority self-governments had used its veto power in case of some decision.
In line with the findings of previous studies, the overwhelming majority of minority self-governments had not resorted to its veto power either because it is not necessary because of the good co-operation or identity of interests or because they wish to avoid conflicts even in connection with controversial issues.
Summary, comments
The co-decision powers of minority self-governments are very significant in achieving minority autonomy as they are unable to exercise their rights to maintain institutions, mostly for reasons out of their control, therefore they can exert influence on decisions affecting the minority communities primarily by exercising their right of comment and approval. Most minority self-governments consider the right of veto, i.e., the right to withhold approval, to be a “double-edged weapon”, therefore they are reluctant to resort to it. We encountered arguments in the questionnaires and during the interviews that if minority self-governments were to insist on their vetoes, the operation of the settlement itself (not only of the municipal government) could be endangered, which would eventually jeopardise the interest of the minority concerned. We have noted several times in our reports that the effective exercise of the right of consent is hindered by the fact that the current legal regulations contain no detailed rules, for instance the conciliation procedure applicable if the parties fail to reach agreement. In the absence of a conciliation procedure we generally make recommendations concerning the framework for the discussion of controversial issues: for instance a conciliation committee could be set up, or joint sessions of the respective representative bodies held. On issues significant for minorities and requiring their approval it would be expedient to convene a joint session already for the first reading of the proposal to avoid controversies, where the mayor and the chairperson of the minority self-government as well as the minority and municipal representatives could exchange their views in person. Our survey shows that joint sessions are held on rare occasions only.
The minority committee of the municipal government may also be an institution appropriate for the exchange and discussion of views and arguments. Our survey found that there are few minority committees set up alongside municipal governments. According to 84% of the responding minority self-governments and 92% of the municipal governments no minority committee has been set up. Most minority politicians consider that there is no need for minority committees; according to one chairperson, their operation would only curtail the autonomy of minority self-governments. The aforementioned solutions could provide only occasional assistance in exercising co-decision rights, therefore the framework of the conciliation procedure, its detailed rules and the manner of taking decisions in the absence of agreement should be regulated in a law; this should be a priority issue during the amendment of the ARNEM.
7.
Minority education
In the course of our investigation into the application of minority rights we did not place special emphasis on education rights as they have been addressed in several comprehensive enquiries in recent years. Therefore only a few of the questions in the questionnaire addressed educational self-government specifically, and some of the responses were also inaccurate. The responses relating to the forms of minority education did not give a reliable picture of the real situation; therefore we will not discuss those issues.
The supplementary minority normative payment
In response to the question whether the settlement really spends the supplementary normative payment for minorities on minority education, most minority self-governments (49%) answered affirmatively, 21 negatively, while 30 did not answer at all because they were not affected or because they did not have information in this area.
The ratio of those not responding to the question about the use of the supplementary normative payment for minorities was very high among municipal governments as well (34%), however, it is notable that, unlike minority self-governments, only 5% of them reported that they did not use the supplementary normative payment for minority education while 60% claimed that they used the grant in accordance with its intended purpose.
The chairperson of a German self-government of a small town in Baranya County complained that even tough only one elementary school provides minority education, the supplementary grant is distributed among all the schools. There is frequent disagreement between municipal governments and minority self-governments, and among heads of educational institutions, what the supplementary grant is sufficient for; municipal governments tend to consider it insufficient even for minority education purposes. The chairperson of a German minority self-government in Baranya County complained that the maintainer of the institution reallocated some of the supplementary payment, claiming to use it towards the state financed modernisation and expansion of the school.
Complaints relating to minority education
We asked whether any complaints had been received from parents by the minority self-government and/or municipal governments relating to the organisation and implementation of minority education. 73% of the responding minority self-governments received no such complaints from parents. 13% did not answer the question, another 14 percent had encountered such complains. This corresponds to 11 cases in total, ten of them describing the complaint in some level of detail; apart from one German self-government in Baranya, Gipsy self-governments indicated that the standard of education was low, gipsy students were not given appropriate treatment, or complain about discrimination in education. The relevant minority self-governments could contribute to the redress of these complaints on four occasions; the solution was found through communication and negotiation with parents, the headmaster and staff of the school. On six occasions the minority self-government was unable to extend assistance to the resolution of problems, and they justified this with the lack of funds or of co-operation.
In contrast, 80% of municipal governments had not received any complaints relating to minority education, 15% did not respond to the question, and only 4 of them (5%) reported to have received complaints from parents, but we have no information on the merits of these cases. We have learned, however, that the complaints have been redressed.
Problems of minority education
We asked municipal governments and minority self-governments about the most serious problems of minority education in their assessment. Half of the minority self-governments that returned the questionnaire did not reply to this question, two of them see no problems. The ones that mentioned problems noted primarily the difficulties relating to the financing of minority education, such as: “the per capita quota is not earmarked”, “the scholarship system should be expanded to encourage Gypsy students to continue their education as this is their only chance for integration”. The absence of adequately qualified teachers, be it teachers belonging to the nationality or teachers able to assist with the education of Gipsy children, and the shortage of educational equipment and the inadequate space in schools were mentioned as problems of equal importance. The social background of children (mentioned 4 times) is raised partly in the context of the poverty of Gipsy parents and partly in connection with the assimilation of national minorities (separately mentioned 3 times), that is, children no longer bring the minority language skills from their homes, and frequently this applies to motivation as well, therefore they study the mother tongue of their ancestors practically as a second language in the framework of nationality education. Four respondents mentioned the negative discrimination against Gipsy children as a fundamental problem, while two complained about the absence of minority education in their settlements.
A higher percentage (75%) of municipal governments failed to reply to this question. Typical problems include the social background of children (5 mentions) as well as the absence of teachers with appropriate qualifications and commitment (4 mentions), and of minority education or an appropriate level of funding (3 mentions each). Other problems (7 mentions) include the difficulties arising from the family socialisation of Roma children, which educational institutions are unable to offset, as well as the fact that “minority children of kindergarten age mostly participate only in the mandatory pre-school education (one year). Those three years are difficult, if not impossible, to make up for”. The insufficient number (or absence) of minority teachers is also a problem. In the context of national minority education, problems include the absence of sufficient teaching aids (in number and quality), and the disappearance of family environments speaking the mother tongue due to assimilation, as well as the practical difficulty that minority education reduces the time available for the instruction of mandatory subjects (which is done in the Hungarian language, incidentally).
The survey led to the very important and revealing conclusion that the leaders of Gipsy minority self-governments are not in favour of Gipsy minority education because in their view this would promote the further separation and segregation of the Roma, and would not be conducive to the integration of the Roma into the majority society.
The representatives of the Romungro Gipsy in Szabolcs-Szatmár-Bereg county as well as those of the Olah (Vlach) and the Beash (Bayásilor) Gipsy in Baranya also argue that traditions and the language can be passed on to the next generation within the family if the will is there, but they claim that parents do not require minority education. Thus the Roma politicians surveyed reported such strong assimilation and integration wishes which in their view would only be hindered by the introduction of Gipsy minority education, “emphasising that being different comes to nothing good”. There is the legitimate fear of the Roma of aggravating segregation underlying these words. Even if they did not use the term, the chairpersons argued in favour of integrated education. However, there is a fundamental problem in that the school segregation of Gipsy children is so extensive that it could be reduced only through the development and operation of well considered local programmes based on the involvement and co-operation of all stakeholders. This issue is all the more pressing as with the exception of towns, all settlements with Roma minorities indicated that the ratio of Roma children in educational institutions is continuously growing. This is mostly attributable to the fact that the absence of local job opportunities and prospects urges non-Roma active age young people to move away from these settlements, and that more and more non-Roma parents take their children away from schools where Roma children go.
As a fundamental problem curtailing the right to educational autonomy, the Gipsy minority self-governments are not only not involved in the design of the various programmes, if any, but they generally do not have the minimum of information about the pedagogical work in the educational institutions or the use of the supplementary normative grants. There are a number of complaints relating to the lack of communication between the self-government(s) and the educational institutions. In contrast, in the German minority self-governments there are a number of German (nationality) teachers among the representatives or chairpersons,12 who can represent and protect the interest of the educational institutions of nationalities as well. We have not encountered any teachers among the Gipsy politicians, and we have no information indicating that the kindergartens or schools concerned would employ Roma kindergarten or school teachers.
Summary, comments
The problems with the use of the supplementary minority normative payment are reflected in our survey: according to 20% of the responding minority self-governments the payment is not used towards minority education. In connection with the supplementary normative payment other enquiries have also revealed the complaint that its amount is not sufficient and due to the elimination of restrictions on its use it is entirely uncertain if the amount is used towards minority education. This practice is illegal even if there is no express legal provision specifying exactly which activities should be funded from the supplementary payment. Again we should underline the view of the chairpersons of Gipsy minority self-governments that Gipsy minority education would result in the increased segregation and separation of the Gipsy communities; therefore they would not be in favour of its introduction.
This view supports the new initiatives of the Ministry of Education to promote integration. It appears that despite its controversial elements, the introduction of the integration normative payment is in line with the opinion of the local Gipsy minority self-governments combating segregation and emphasising the need for its prevention.
It would be expedient to give priority to supporting, within the framework of the Ministry’s integration programme, local projects for the integrated education of Gipsy children on the central government level, relying on the involvement of local minority self-governments.
8.
Right to the mother tongue
Use of minority languages
According to a quarter (14%) of the minority self-governments, members of the minority community do not use their mother tongue at all in their settlements. Due to the advance stage of the loss of mother tongue of the middle aged and young generations, it is mostly the elderly who tend to use their minority mother tongue. Minority citizens tend to use their mother tongue at home, in the family and/or at cultural events for minorities. The examination of differences in the use of mother tongue by minorities reveals that the municipal governments of Croatian and “small” minorities as well as the Beash communities in Baranya County have reported that members of the minority communities speak their mother tongue. Naturally there is good reason why the use of the mother tongue is more wide spread and more common in the closed communities of small settlements and small villages, where the minority is often the majority in the local community; this is much less typical in larger, ethnically heterogeneous settlements. It is also understandable that the Gipsy self-governments of Szabolcs reported the least use of the mother tongue by their communities, as most of the Roma living in the county have Hungarian as their mother tongue. The responses of the municipal governments reveal a different picture on the level of averages, as 45% of them think that members of the minority communities do not use their mother tongue at all.
Language use at sessions of the representative body and in consulting hours
Only 24% of the minority self-governments use the minority language regularly at the sessions of their representative bodies, while 15% responded that occasionally they used the mother tongue at the sessions, and 61% reported that only Hungarian was spoken at the meetings of the self-government.
It is the representatives of the Croatian and of “small” minorities who tend the most to speak in their minority language at the sessions, many of the Germans speak Swabian on occasion, while the vast majority of Gipsy self-governments from both counties reported that they do not use the minority language at all at their meetings. As a peculiar contradiction, while the informal use of the mother tongue is more common in the closed communities of small settlements and small villages, the regular use of the minority language at self-government meetings is more frequent in case of the minority self-governments in larger communities or towns. Naturally, the dominance of the Hungarian language in the official language use of minority self-governments is partly attributable to the loss of the minority language as the interviews also revealed that some minority representatives do not speak their mother tongues at all. This problem does not arise among the Romungro Gipsy community, their mother tongue being Hungarian. In the case of others, the use of the Hungarian language in official communication is due to practical reasons: that it is expedient to write the minutes of the meeting of the minority self-government in Hungarian, even tough the law provides the possibility to do so in their mother tongue. This is especially true if the minutes of the minority self-government meetings are kept by the town clerk, which is the common practice in small settlements.
The minority self-governments speak with the members of the minority community in their mother tongue more often than they do at their assemblies. 37% of them reported using the minority language during their consulting hours regularly, 14% occasionally, while 49% speak exclusively Hungarian there as well. The significance of the local German dialect and the Beash Gipsy language is considerably greater in informal than in formal communication.
The minority language in official proceedings
The right of citizens belonging to minorities to the use of the mother tongue in official proceedings is an issue pertaining to the right to use the mother tongue. According to 23% of the responding minority self-governments this option was available in their settlement, while 18% answered that the option was available but members of the minority community did not require this. Only a fraction of minority self-governments (3%) reported that the use of the mother tongue was not an option in official procedures even though the minority community would require this, and over half (56%) of the self-governments responded that this was not an available option and the minority community did not demand the use of their mother tongue either. The various minorities can use their mother tongue at different degrees and they consider this necessary to varying degrees as well. Members of larger national minorities tend to require and actually use their mother tongue in official proceedings more often, especially if they live in small villages or small settlements where communication in the mother tongue is still alive within the community. The modesty and realistic thinking of “small” minorities in large towns is indicated by the fact that they do not claim the right to speak their minority mother tongue at the mayors’ office or other administrative entities. The members of the Gipsy community in Baranya have a better chance of arranging their business in their Beash mother tongue, while in Szabolcs-Szatmár-Bereg county, due to the aforementioned circumstances, Roma do not demand this right in the overwhelming majority of settlements.
A higher ratio of municipal governments (73%) than of minority self-governments indicated that even though members of the minorities were unable to use their mother tongue in official proceedings, they would not require this option anyway; accordingly, they reported on much fewer occasions that in the course of official proceedings there would be a possibility to use the minority language (13%) even if the minority did not demand this right (12%). (Only two municipal governments responded that the minority would want to make use of this option but they are unable to provide it.)
Whether the municipal government employs administrators who speak the language of the minority (minorities) living in the settlement and who can use that language in the official procedures, or perhaps are of minority descent themselves, depends on several factors. The fact that administrators with minority language skills are more frequently found in settlements inhabited by “large” national minorities is attributable to the number of inhabitants of the settlement, the related use of the mother tongue and to national education. On the other side, due to the absence of the minority education of Gipsies, and the peculiarities of the school and job mobility of the Roma, there are barely any administrators in settlements who come from the minority community and/or speak the Beash or Romany language.
As to why they employ no administrators of minority origin or speaking the minority language, over one third of the municipal governments did not respond, and over one half argued that “there was no demand” for this among the minority community. According to the remaining respondents, the minority “do not speak the minority language”, or there is no one in the settlement belonging to the minority community who could be employed. However, some of them explained the absence of a minority administrator saying that the settlement has insufficient funding; therefore (without support) they are unable to find the funding to hire a minority administrator.
According to the vast majority of the responding minority self-governments no problems arose in their settlement relating to the use of the minority language, and they noted on four occasions only that some problems relating to the use of language had to be redressed; these were connected with the display of bilingual town and street signs. The municipal government did not appreciate the demand for bilingual signs due to antipathy or lack of funds, or they displayed the minority name of the settlement incorrectly. These difficulties have generally been resolved. According to the municipal governments, no problem relating to the use of minority languages arose in their settlements.
Summary, comments
The ARNEM declares important rights relating to the use of language, but our survey indicates that these are barely ever enforced in practice, for instance only 23% of minority self-governments responded that there was a possibility as well as demand to use the mother tongue in official procedures, and 13% of the municipal governments responded similarly.
The use of the minority language is generally more important in informal, personal relations than in formal, official situations. As a result of the decades of assimilation, the signs of the loss of mother tongue are increasingly present even in local communities. Minority education plays an outstanding role in halting that process, primarily in the case of national minorities.
In addition to supporting minority education and assuring the legislative framework for the use of language, the state must also support the preservation and transmission of the minority languages by targeted forms of grants. If appropriate funding was available, the representatives of minority self-governments, and the young adult members of minority communities would presumably demand special education or courses to help them re-learn or refresh their language. For the use of national mother tongues in daily life and primarily in the labour market it would be desirable for communities speaking mostly dialects to become familiar with the literary languages of their kin states. Furthermore, communities also voice the demand that the preservation of the local dialects should be an objective of minority education.
The representatives of minority self-governments are role models in the transmission of the language and thus in the preservation of their minority culture; this is why the election of persons not belonging to the community and lacking even the minimum of language skills is so dangerous. Pursuant to the provisions of the ARNEM, the Roma can make the same demands for the preservation and transmission of their mother tongues (the Romany and Beash languages) as national minorities can. However, we should not disregard the fact that as opposed to national minorities, the majority of the members of this minority have Hungarian as their mother tongue, and the Roma using their ethnic mother tongue constitute a minority within the Gipsy community. At present the instruction of the Romany and Beash languages is hindered by the absence of personal and material conditions and the lack of standardisation of these languages. As we noted in our report, there is a real danger that, like in most European countries, the Gypsies of Hungary may also lose their mother tongue. In order to prevent this, Hungary may want to reconsider the addition of the Romany and Beash languages, inter alia, to the current six languages covered by the obligations arising from the European Charter of Regional and Minority Languages. Such a decision would reinforce the significance of the Romany and Beash languages, which could also turn around the increasingly pronounced trend of the loss of mother tongue among the Gipsy communities.
9.
Negative discrimination
Even though in the questionnaires 75% of the minority self-governments and 88% of the municipal governments reported to have encountered no negative discrimination against members of a minority in their settlements, the data still reveal that one quarter of the Gipsy minority self-governments are compelled, and mostly unable, to fight discrimination against Roma citizens. The interviews painted an even darker picture as the Roma minority politicians and mayors/town clerks visited often recounted various cases of discrimination. Negative discrimination occurs mostly in education and/or employment; one minority self-government noted that the Roma are not allowed to enter places of amusement, and one complaint each was voiced against police procedures, general “humiliation, denigration, defamation, assault” against Gipsies, and in one settlement the town clerk allegedly prevents local Gipsy residents from acquiring land or homes.
The majority of the affected minority self-governments stated that they could participate effectively and efficiently in resolving conflicts arising from discrimination (nine mentions), two indicated that even though “we will always remain filthy Gypsies to Hungarians”, the majority is beginning to “restrain themselves”, partly because the firm actions of the minority self-government yield results, partly because Hungarians have “realised that Gipsies are also decent folks”. One Roma chairperson recounted difficulties in addressing the discriminative practices in education because even though the self-government had contacted the headmaster of the school with his complaint, who convened the teaching staff, “the real problems is that parents do not back us up when it comes to sticking their necks out in front of the teaching staff”. Only two self-governments think that “we will be unable to put down discrimination”. The municipal governments gave diverse answers to the question whether they had been able to participate in resolving conflicts arising from negative discrimination (six responses were received). A complaint against negative discrimination encountered in the course of police procedure prompted an official investigation, which managed to “clarify the accusations”, while in other cases the parties concerned entered into discussions, which led to a compromise. One municipal government reported that in the context of discrimination at work and in hiring they “played a part in resolving conflicts. They visit the head of the employer, request his assistance and that he take into consideration the financial and social conditions of the family”. Finally a very honest and empathic view: “I feel that such conflict resolution is at a very poor standard nationwide; Gipsies have highly sophisticated intuition, and they sense if their acceptance is real or just statutory and formal”.
Minority self-governments consider the instruments currently available for managing the problems of negative discrimination in education, employment, official procedures, and other areas of daily life (catering, health care) inadequate. Twenty self-governments responded to the question if they found the tools available for the management of conflicts stemming from negative discrimination to be effective; twelve of them answered in the negative.
Our experience shows that they can achieve results only if they turn to entities (ombudsman, legal protection agency) that extend tangible help in enforcing their rights. However, municipal governments often view such a strategy as a hostile act.
Summary, comments
We are convinced that, in order for actions against negative discrimination to be effective, they cannot rely merely on committed legal protection activist, well meaning mayors and the determination of persons willing to fight for their own rights; instead, they must be based on normative foundations which, in addition to providing assistance to the aggrieved persons, may also result, even if not immediately, in the change of daily coexistence, political culture and public speech.
The findings of the survey also confirm the importance of the adoption of a comprehensive non-discrimination law as soon as possible, with clear definitions of terms and containing a proportional, effective and restraining set of sanctions. In addition, legal regulations as well as a change of attitude and the creation of equal opportunities must also be given significant roles in the fight against discrimination, which is the primary responsibility of the state. Our survey also outlined that often neither the perpetrator nor the aggrieved party recognise the phenomenon of discrimination, they consider it natural, accept it, therefore they cannot be expected to strive for changing them. We must emphasise the objectives of the Directive 2000/43. EC under which the equal opportunity programmes and the tools of action against discrimination must be made available to the broadest possible public, and the implementation of independent non-discrimination initiatives of the public must be encouraged. Awareness raising campaigns must be launched to make citizens realise the importance and potentials of the fight against discrimination as well as the responsibility we all have in resolving this problem affecting our entire community.
10.
Continued education, legal skills
Only 26 of the minority self-governments returning the questionnaire (32%) reported that one or more of their members had attended some minority rights related training in recent years. Attendance of training courses was least common among the Croatians and the Gipsy politicians of Szabolcs-Szatmár-Bereg County. “Small” minorities did not reply to this question, and the interviews also revealed no sign of their attendance. The training courses mentioned by the minority self-governments did not focus exclusively on the field of minority rights: on occasion they conveyed book-keeping skills necessary for day-to-day operation, or informed about the upcoming application opportunities or provided assistance in the preparation of applications. However, some of the Gipsy politicians participated in conflict management, personal development or computer courses.
The municipal governments indicated on only 19 occasions (20%) that the members of the municipal government or staff of the mayor’s office had attended training pertaining to minority rights in this election term on one or more (2-3) occasions. The majority of training courses (8 out of 14 mentions) related to the training of leaders of the minority self-government or minority politicians, or explained the minority self-government system in general; less frequently they discussed the upcoming application possibilities or the social land programme, or pertained to the education of Gipsy children.
We consider that the participation rate of minority politicians is rather poor, especially in light of the fact that according to 53% of the minority self-governments the legal skills of minority representatives are not at all satisfactory. 13% consider legal skill to be partially adequate, and only 34% have expressed unqualified satisfaction with the legal expertise of minority politicians.
A higher percentage of the self-governments of national minorities found the present situation satisfactory, while over 50% of the Roma think that the legal expertise of representatives leaves a great deal to be desired. The larger the population of a settlement, the lower the rate of dissatisfaction – but the higher the rate of those finding the skill of minority politicians only partially satisfactory. In small villages and small settlements the number of self-governments thinking that the present situation is plain unsatisfactory is significantly higher, which may be related to the age and school qualifications of minority politicians, but presumably also to the fact that inhabitants of such small settlements find it more difficult to attend courses or training.
45% of the mayors, town clerks and employees of the mayor’s office consider the legal skills of minority representatives to be deficient, 20% think they are partly sufficiently, 32% see them as completely adequate. Apparently those municipal governments are the least satisfied with the knowledge of minority representatives which work alongside Gipsy self-governments, while municipal governments are more satisfied with politicians representing national minorities.
We received the reverse of the views about their own skills where we asked minority self-governments how satisfactory they consider the skills of the members of the municipal government and the staff of the mayor’s office in the field of minority rights. 54% are completely satisfied, 16% think that the knowledge of these persons is partly satisfactory, and 31% claimed to be completely dissatisfied. The relatively high ratio of the partly satisfied – among the Gipsy self-governments of Szabolcs and the German self-governments – is attributable to the fact that, even if not invariably, they give a positive assessment of the skills of the town clerk and the office staff, who are in regular contact with the minority self-governments, in the field of minority rights, while (legitimate) concerns were raised in connection with the municipal representatives. Again we find that the rate of satisfaction is generally higher in larger settlements, and in particular in towns and county seats, than in small communities.
The municipal governments cannot be accused of expressing keen interest in minority rights or in training courses relating to minorities and the operation of minority self-governments. True, 48% of them are fully satisfied with the relevant skills of the municipal representatives and the staff of the mayor’s office. 37% of the respondents indicated that they are only partially satisfied with the expertise of the representatives or municipal employees, and only 12% expressed dissatisfaction. However, there are significant variances underlying the average figures. The minority rights knowledge of representatives and municipal employees are considered adequate (53%) or partially adequate (35%) to the greatest degree by the municipal governments of Szabolcs-Szatmár-Bereg county, while in settlements in Baranya with Gipsy and German minority self-governments they are assessed most frequently as deficient (23 and 17%, respectively) or partly satisfactory (31 and 50%).
58% of the minority self-governments returning the questionnaire indicated that they would require training, consultancy or assistance relating to minority rights. Most of them would expect assistance from the national level (minority) self-government or its county organisation; similar percentages consider the offices of public administration and the minorities ombudsman are the relevant authorities or institutions, and that the government entities, among them the Office of National and Ethnic Minorities is responsible for the training of minority politicians, while some would expect a solution on the local level. Only 14 responses were received to the question about the type of assistance needed; all of them emphasised the necessity of legal education to minority representatives.
34% of the municipal governments returning the questionnaire think that the (further) education of municipal representatives or of office staff would be needed in the field of minority rights (the others gave no response). In this respect most of them expect assistance from the national minority self-governments, the county self-government or office of public administration, and the state, the government and the ombudsman were mentioned by one respondent each.
Some responses raised the need to issue a methodological guideline that municipal governments could (also) use, which would present the problems arising in connection with the operation of minority self-governments through practical examples and also offer solutions. Others think, however, that there is high quality literature available on this subject, which of course should be updated from time to time.
Summary, comments
53% of minority self-governments consider the legal expertise of minority representatives inadequate, and 58% would require such training. Albeit the leaders of minorities as well as of municipalities have a more favourable opinion of the skills of the staff of mayor’s offices and municipality representatives, 34% of municipal governments also indicated that they would consider it necessary to educate municipal representatives in minority rights. The diverse training of politicians in minority self-governments and municipal representatives and civil servants is an important task, which cannot be limited to the teaching of minority, public administration and financial skills; the conveyance of information on various subjects and communication skills is equally important. The training of minority and municipal representatives must also cover the techniques of conflict management and prevention.
It would be expedient to hold joint training courses for minority and municipal representatives and civil servants, and the survey revealed a need for that. Training courses would probably be more effective if they were moved as close as possible to the level where self-governments (governments) operate, going down at least to the level of micro-regions because attendance at training courses may entail considerable expenses even if participants must travel only as far as the county seats.
The leaders of self-governments in existence since 1994 mentioned that upon the establishment of the system of minority self-governments, after the first elections there were considerably more opportunities to equip themselves with the necessary skills at various training courses. In the third election term a similar emphasis should be placed on the education of minority self-government representatives. According to the opinions voiced, the national self-governments, county governments, offices of public administration, government entities and ombudsman’s office should all play their part in the organisation of training.
General assessment and summary of the application of minority rights
One of the peculiar conclusions of the questionnaire survey was that the municipal governments and the minority self-governments have markedly different views of the delicate and most controversial issues of the system of minority self-governments, the enforcement of minority rights. On the one hand, municipal governments almost invariably painted a much more favourable picture of themselves than minority self-government did of them. On the other hand, the municipal governments were expressly satisfied with the effective regulation of the system of minority self-governments; according to 73% of them, the minority interests and demands can be enforced within the present framework, therefore no change was needed. They consider it unnecessary to strengthen the autonomy of minority self-governments by the transfer of tasks and functions and by increasing the independence from the municipal government. In contrast, only 40% of the responding minority self-governments are satisfied by their possibilities provided in legislation, whereas 48% would consider it necessary to expand the tasks and functions of minority self-governments and to enhance autonomy and independence of the municipal government.
Even though the minority representatives participating in the survey expressed a number of criticisms of the present regulatory framework, they unequivocally think that the solution to the existing problems can only be the improvement of the system of minority self-governments and certainly not its abolishment. Well functioning minority self-governments discharge functions as partners of the municipal governments which non-government organisations of minorities would be unable to perform, or would be able to do so with much less efficiency. The survey reinforced our conviction that the system of minority self-governments can be developed into a suitable framework for the creation of the cultural autonomy of minority communities in Hungary. The maintenance and development of the system of minority self-governments is the institutional safeguard of the enforcement of the minority rights enshrined in the ANREM.
The representatives of minority self-governments also listed the most severe problems hindering their operation in this election term. The Gipsy minority self-governments, who represented the highest ratio among the respondents, mentioned “initial lack of experience”, conflict ridden relationship with the municipal governments as well as the difficulties arising from the social problems of the Roma and the limited manoeuvring room and tightness of financial resources available to minority self-governments. Other problems mentioned included the lack of information, limited application possibilities and the lack of qualifications of Roma minority chairpersons and representatives on the local level.
The problems of self-governments representing national minorities also included the insufficiency of grants, the poor relationship between the municipal government and the minority self-governments and the absence of information.
When minority self-governments argue in favour of the expansion and assumption of tasks and functions, they would also require changes in the system of grants and funding and the co-operation with the municipal governments, because they would be unable to property exploit the new tasks and functions without the necessary financial background and the establishment of new forms of co-operation.
In our opinion such a differentiated system of grants should be devised which takes into consideration the size of minority communities, the differences in the functions performed and their different positions due to the regional location and development level of the settlements. The financing system of minority self-governments must guarantee that the tasks and competences specified in the ARNEM are not only declared objectives but also realistic and sustainable activities.
Incidentally, the level of “satisfaction” of municipal politicians is not as unanimous and uniform as the data would indicate. On the one hand, in the opinion of half the municipal governments the establishment of the minority self-governments and the statutory – sometimes voluntary – support to be given by municipal governments places additional administrative and financial burdens on them. On the other hand, primarily where Gipsy self-governments operate, the municipal governments and mayor’s offices often face problems or become active participants in conflicts which they can address and resolve on their own with great difficulties only, if at all. All this means that, as we indicated in our survey, an appropriate form of compensation should be introduced to provide financial support to municipal governments. We must also be aware, however, that some of the municipal governments would need technical assistance; not only or primarily in the field of minority rights but so that they become familiar with and master the communication and conflict management techniques that would be conducive to resolving conflicts arising in the course of co-existence with minorities and the co-operation of the municipal government and the minority self-governments. In order to make the system of minority self-governments and the enforcement of minority rights more effective, the municipal governments must also be encouraged and supported in becoming real partners in co-operating with minority self-governments.
For the improvement of the minority self-government system it is also important whether local minority self-governments can influence with their views the amendment of the key acts governing their operation. 26% of the minority self-governments returning the questionnaire could comment on the Bill on the amendment of the act on minorities submitted to Parliament in 2001. The situation was even worse in case of the Bill on the election of minority self-government representatives submitted to Parliament also in 2001. Only 23 % of the minority self-governments could comment on that bill. We do not know why the Bills submitted to the Parliamentary Committee on Human Rights, Minority and Religious Issues, in the preparation of which the national minority self-governments also participated with their proposals, found their way to the local self-governments in such small numbers, if at all. In our opinion the legitimacy of legislation would be enhanced if the parties most directly affected by the changes could also participate in the discussions during the drafting of legislative amendments.
Our survey confirmed the almost commonplace statement that the system of minority self-governments means different things and provides different conditions to national minorities than to the Gipsy minority.
For national minorities the system of minority self-governments provides a sort of “foothold”, and chance to slow down the process of assimilation started a century ago, and to create the conditions for cultural autonomy. “Small” minorities appear to be the most satisfied with the Minority Act and they would not want more powers than provided in the act. They are the least likely to voice views that the effective representation of minority interest should be assured by full membership in the municipal government. Stay out of politics and exploit the existing opportunities offered to minorities – this is their main strategy.
The self-governments of “large” national minorities, primarily the Germans and Croatians (and potentially also the Slovaks, who were represented in our sample only with one self-government of a community in a large town) find the framework of minority interest representation too restrictive. They would demand more powers, the same status as municipal representatives, the same tasks and responsibilities in decisions affecting the minority and the settlement.
The rights declared in the ARNEM in themselves are no longer sufficient for them; they would demand real rights supported by the appropriate conditions and guarantees, not limited to the level of wishful thinking, primarily in the field of the maintenance of institutions, which would represent a step towards the achievement of cultural autonomy.
The demands and possibilities of the various minority self-governments as well the content of minority interests are greatly influenced by the size of the settlement and the standing of the members of the minority within the local community. The maintenance of institutions and the assumption of functions are demands voiced primarily by minority self-government operating in large villages or towns which are backed by a large minority community and also in settlements where the established or emerging system of minority institutions would allow for the enforcement of minority rights without jeopardising the interest of the majority in the fields of education and culture. In small settlements and small villages, where minorities sometimes constitute the majority in the local community, the interest of the minority cannot be clearly separated from the interest of the settlement, while in under-funded small villages the funds available to the minority self-government are directly at the disposal of the whole community: the minority self-government assigns some of its funds to the municipal government, and minority politicians do not voice demands of assuming powers or institutions. Despite these differences the majority of the self-governments of national minorities and of minority politicians also require more participation and appropriate powers to influence decisions affecting the future of the settlement, and also the future of the minority.
The operation of the municipal governments which transformed themselves into minority self-governments offer a peculiar example; the authors consider this to be the ideal arrangement because not only have they not raised any problems but even questions about the relationship between the minority and majority were met with incomprehension. “The interest of the village is also an issue for the minority”. Minority tasks are smoothly incorporated into the activities of the municipal government, they maintain the national educational institutions of their own or of the district and support non-governmental organisations.
It appears, however, that minority municipal governments operate so effectively, without any problems or conflicts because the theme of nationalities and minorities, the discussion of minority rights is not present in local public life.
The amendment of the existing framework of minority interest representation is a pressing task for national minorities to assure their real cultural autonomy.
The question is, whether the rather limited possibilities offered by the Minority Act to the (national) minorities highly assimilated and integrated into the majority society have come too late to stop the process of assimilation. This survey has not endeavoured to investigate the complex issue of minority identity, assimilation and dissimilation, the likely and desirable visions of the future. Still, we should emphasise, in concordance with the findings of previous surveys, that despite the severe regulatory deficiencies, the possibility of setting up minority self-governments, then their actual establishment, resulted in strengthening the cultural and educational activity of national minorities, enhancing the cohesion and identity of minority communities – this is an achievement even if it will presumably not reverse the fundamental trends of assimilation, only slow them down.
However, the legitimacy of the existing system of minority self-governments may be questioned by the present provisions concerning voting rights, which allows non-members of the minority communities to participate in the election of minority representatives and facilitates the election of representatives without any personal ties to the culture of the minority concerned. We should emphasise again that the amendment of the provisions relating to voting rights as soon as possible is a common interest of all minorities in Hungary. They would have a much better chance to expand the tasks and functions required to strengthen their cultural autonomy and to implement the necessary changes in the financing system if no one could exploit in bad faith the deficiencies of the minority legislation.
In technical and political discussions about the system of minority self-governments it is considered self-evident that in contrast to the national minorities completely integrated into the majority society, the minority self-government system is unusable for the management of the severe problems of the Roma living in deep poverty and exclusion, indeed, the “quasi-regulatory powers” vested in them in the field of social benefits and employment lead to the “ethnicisation of poverty”, thereby aggravating the segregation of Gipsy communities.
Studies call attention to the danger that in case of the Gipsy minority self-governments the rights inherent in their ethnic minority position and the eligibility to benefits due to their poverty are not separated from each other.
We can only agree with the scholars13 who think that the system of minority self-governments cannot be a substitute for effective social policy. However, the majority of the Gipsy minority self-governments would demand more powers in the field of social benefits and the formulation and implementation of local social policy instead of the present controversial regulation, and such politicians would envisage the attainment of real public law status by assuming such social competences. In other words, on the local level the separation of the minority and social dimensions of issues is very difficult. Presumably it would be necessary to involve minority self-governments not only and primarily in the implementation of social tasks. In respect of the enforcement of minority rights and interests it is imperative that the involvement of the Gipsy minority into the social functions is not limited to the ability of the chairperson to say, in the best case scenario, which Gipsy family is worthy of social aid, instead, it should mean that the Gipsy minority self-governments participate in the drafting of local social policy bylaws and the monitoring of their implementation. Naturally, this is true not only in the field of social policy; minority self-governments should have real powers in the making of decisions affecting the lives of the Roma community.
Our research findings indicate that there are differences in almost every respect between the potential available to national and Gipsy minorities and minority politicians. Roma minority politicians have a smaller chance of gaining a seat on the municipal government, they have a much more limited scope for transit between the two bodies than the representatives of national minorities do. The financial autonomy of Gipsy minority self-governments is the most limited as most of the municipal governments keep their financial management under strict “control”. The Roma population formulate expectations in respect of Gipsy minority self-governments which would require the use of legal and financial instruments not available to them, therefore Roma politicians are forced to balance on the narrow line between powers allowed and prohibited in the effective Minority Act if they want to alleviate the hopeless existential position of the Roma with their own means.
To make their work even more difficult, they must regularly face overt or concealed forms of negative discrimination, against which they are unable to take effective action, or they can do so only with the help of legal protection agencies. Gipsy minority self-governments and Roma politicians must fight for recognition and acceptance within their own communities as well as amongst the majority. This effort is also hindered by the fact that the municipal governments do not tend to consider them equal partners, and this encoded inequality is attributable to the Gipsy minority identity.
Gipsy minority self-governments are forced to operate in the stranglehold of “quasi-regulatory” powers relating to social benefits and amongst the attractions and repulsions of assimilation and independent identity policy.
Apparently the minority self-government strategies favouring assimilation rather than the cultural and ethnic difference of the Roma and those emphasising the representation of the interests of the Gipsy community as an independent political and ethnic entity may compete with each other even within the same settlement.14 The majority of the local politicians interviewed think that the most effective instrument in the struggle for the recognition of the Gipsy minority is integration which does not emphasise the separation of the Roma, the ethnic and cultural difference, and which refrains from engaging in independent Roma politics within the settlement. At the same time, behind their objectives there is a clear wish that they want to be full members of the settlement, and in a broader sense of Hungarian society, as Roma people, and they would like to receive recognition and appreciation similar to that accruing to the “Hungarians”. These objectives coexist with the resentment of Roma politicians of the failure of some of the Gipsies to embrace their Gipsy identity because they have exceeded their peers in existential terms and/or because they are afraid of discrimination. “We are proud to be gipsies even instead of those who renounce their identity.”
In the struggle for the social integration of the Roma, the system of minority self-governments is only one tool, and a controversial one. The amendment of the Minority Act may set out to assure that the Roma are involved as equal partners in the process of making decisions affecting them. However, the resolution of the social and employment problems is beyond the scope of the Minority Act; similarly, the negative discrimination against the Roma is such a severe issue the resolution of which, in our opinion, requires the adoption of an independent non-discrimination law.
Recommendation, initiative
1. To promote the better enforcement of minority rights and the improvement and more effective operation of the system of minority self-governments, relying on Article 25 of Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights (PC Act) I hereby
propose legislation
to the Minister in charge of the Prime Minster’s Office as the person with primary responsibility for government tasks relating to the national and ethnic minorities to the effect that, in co-operation with the President of the Office of National and Ethnic Minorities and the Political Undersecretary of the Prime Minister’s Office responsible for Roma issues, and involving the relevant line ministries,
• immediate action be taken to draft the amendment of Act LXXVII of 1993 on the Rights of National and Ethnic Minorities and of the related legal regulations;
• such preparation of the draft should include the discussion and elaboration of the following fundamental policy issues:
– development of the rules of election with an eye to preventing the election of representatives abusing the interest of minorities and to promoting greater legitimacy of the minority self-governments;
– the issue of the establishment of a middle level minority self-government, the definition of potential tasks and functions and their delineation from other levels;
– the status of minority self-governments under public law, the expansion of their tasks and functions, safeguards of their exercises of the right to maintain institutions;
– the regulation of the co-operation between the minority self-governments and municipal governments so as to ensure safeguards for its implementation and sanctions as necessary;
– the elaboration of a new financing system of minority self-governments, the creation of possibilities for differentiated financial grants, compensation to municipal governments for their tasks relating to minorities;
– the elaboration of rules facilitating the practical implementation of co-decision rights;
– issues of the financing and development of minority education; in the case of the Roma minority the prevention of segregation in education and the measures necessary to implement integrated education;
– preservation and transmission of the mother tongue and the reinforcement of its use in official procedures;
– whether regulations should be equally applicable to the thirteen minorities, or the scope of certain provisions of the Minority Act should cover only the Roma community to promote the social integration of the Gipsy minority;
• the reoccurrence of delays in the drafting of legislation should be prevented by the clear definition of persons responsible and deadliness and by continuous monitoring;
• the affected minority organisations (minority self-governments, non-governmental organisations) as well as the municipal governments should be given an opportunity to discuss the merits of the draft legislation.
Furthermore, I recommend that:
the relevant line ministries and entities make use of the findings and comments of this survey in the course of the preparation of the amended legislation.
2. To assist in the work of minority self-government representatives elected in 2002, and to promote better co-operation between municipal government representatives, civil servants working at mayor’s offices and minority self-government representatives, pursuant to Article 21 of the PC Act I submit the
initiative
to the Minister in charge of the Prime Minster’s Office as the person with primary responsibility for government tasks relating to the national and ethnic minorities to the effect that, in co-operation with the President of the Office of National and Ethnic Minorities and the Political Undersecretary of the Prime Minister’s Office responsible for Roma issues, and involving the Interior Minister, using the experiences gather so far, he take the necessary measures to design a further training system which would continuously provide opportunities for the joint training of minority and municipal representatives and civil servants on the level of the county or micro-region, taking into consideration local needs.
Such training should promote
– the mastering of skills by participants in the field of minority rights, public administration and finances and their practical application,
– the prevention and hindrance of the evolution of negative discrimination and prejudices, and
– the mastering of techniques of the prevention and management of conflicts.
Budapest, 6 February 2003
Dr. Kaltenbach Jenő
1 Csefkó, Ferenc – Pálné Kovács, Ilona (ed.): Kisebbségi önkormányzatok Magyarországon [Minority self-governments in Hungary]. Osiris–MTA Kisebbségkutató Műhely–MTA Regionális Kutatások Központja, Budapest–Pécs, 1999.
2 We have in mind primarily the works of Ferenc Eiler and Nóra Kovács, Emília Molnár, Árpád Rátkai, Ilona Pálné Kovács, Júlia Szalai and her students; furthermore, mention should be made of the research into German minority self-governments conducted in 2000 by the Regional Development Research Department. For the discussion of legal issues relating to minority rights, the election and operation of minority self-governments see first of all Issue 3 of 2001 of Fundamentum, containing the presentations at a conference held in 2000 as well as theoretical papers. We should also highlight the publication ‘A kisebbségek parlamenti képviselete és részvételük a politikai döntéshozatali folyamatban’ [Parliamentary representation of minorities and their participation in political decision making], summarising the presentations at a conference organised by the Parliamentary Commissioner for the Rights of National and Ethnic Minorities in 1999 as well as the views of the minority representatives directly affected.
3 The survey was headed and the final report written by Mónika Mária Váradi; contributors to the survey and processing of data: János Bali, Judit Farkas, Judit Gulyás, Bálint Koós, Kata Rácz, Gyöngyi Schwarcz; the questionnaires were processed by: László Balázs Tóth, Anna Sára Vas.
4 By the term “large” national minority the authors meant the minorities with a high number of members and living in geographically adjacent settlements, in case of Baranya county the Germans and Croatians, while “small” national minority meant the other minorities living in the counties, with fewer members and living in dispersion. Due to their position and problems being significantly different from those of national minorities, the Gipsy minority was generally specifically mentioned as such when presenting the data.
5 Percentages have been rounded to allow for easier reading. In the course of the analysis only responses allowing analysis have been taken into consideration, therefore we have not indicated in the text the “other” responses, which were generally low in number and in percentage as well.
6 In Baranya County there are fifteen minority municipal governments, twelve of them being German, three Croatian. Of these, we selected two Croatian and German settlements each. In Szabolcs-Szatmár-Bereg county only one (German) minority municipal government was formed in 1998.
7 Using an outline discussed with the Parliamentary Commissioner and his staff in advance, the interviews were conducted by sociologists and ethnographers rather than the staff of the Parliamentary Commissioner. The researchers interviewed the chairpersons or deputy chairpersons of 28 Gipsy, 13 German, 4 Croatian, 2 Serbian and Polish each, as well as 1 Slovak, Greek, Bulgarian and Armenian each directly elected minority self-governments. In addition, in Szabolcs-Szatmár-Bereg County the chairperson of the county level organisation of the national Gipsy self-government and the county representative of the Roma Civil Rights Foundation were also interviewed.
8 Majtényi, Balázs: A magyarországi kisebbségi önkormányzati rendszer elvei és működése [The principles and operation of the minority self-government system in Hungary]. Fundamentum, 2001/3, pp. 34–42.
9 Small settlements and small villages belong to rural district clerk’s offices, primarily in Baranya county; here the minority self-governments often make use of the central office of the rural distric clerk for typing, reproduction or mailing, and less frequently for holding their meetings.
10 59 responses were received to this question, 37 from Gipsy, 19 from German, two from Croatian and one from a “small” minority self-government.
11 According to the answers of minority self-governments, only 18 minority representatives participate in the work of committees, one of them is also a municipal government representative; their numbers include eight German, nine Gipsy and one Croatian minority representative. The self-government indicated on nine occasions that one of their members, or their chairperson, was elected into some committee as minority representatives, three German representatives, three Gipsy and one Croatian representative; they have voting rights. Eight minority representative participate in the work of a committee with consultation rights, three of them Gipsy, one German and one Polish representative.
12 In the course of a study conducted in 2000 on German minority self-governments, the profession of 326 German minority representatives was disclosed, 53% worked in the public sector, with a very high percentage 66% of them being teachers. Váradi 2002.
13 Szalai, Júlia: A társadalmi kirekesztődés egyes kérdései az ezredforduló Magyarországán [Some issues of social exclusion at the turn of the millennium in Hungary]. MTA Szociológiai Intézet, Budapest, 2002. Manuscript.
Molnár, Emília: Atyáskodás és kiszorítósdi. Helyi intézmények, cigányok, kisebbségi önkormányzatok. [Paternalism and expulsion. Local institutions, gipsies, minority self-governments]. Beszélő, 2002/1, pp. 74–86.
14 Burka, Viktória–Vida, Judith–Wizner, Balázs: Szalakóta – a roma érdekképviselet sorsa egy északkelet-magyarországi faluban. [Szalakóta – the plight of Roma interest representation in a village in North Eastern Hungary] Holmi, 2002/7, pp. 891–905.
I.
Current issues of minority rights
Introduction
Several characteristic events in Hungary and elsewhere
As in previous years, our report begins with a brief description of minority-related events that have occurred during the year in Hungary and elsewhere. Regarding events in Hungary, a glance at the appended statistics reveals a slight increase in the number of petitions submitted to us. The main reason for this is, however, that 2002 was a year of minority self-government elections. The report – not for the first time – discusses at length the anomalies surrounding these elections.
Nevertheless, compared with 1998 – when we analysed in detail the reasons for the anomalies and made proposals for changes regarding the mistaken legal regulations, a new development is the “open abuse” of voting rights, which the (still) deficient legal regulations “legitimise” as a kind of caricature of the rule of law.
As a result, a fundamental reform of minority suffrage has become a basic requirement that can no longer be ignored. This is warranted by the latest amendment to the Constitution, affecting Article 70(1), which cancelled the previous rather unfortunate provision on fundamental election and voting rights.
In our report of 2001 we indicated that a serious legislative default was the failure to elaborate a minority bill and a so-called anti-discrimination bill. We are pleased to note that some progress has been made in this area. However, we emphasise that the administration must now take the steps necessary for the effective realisation of its stated intentions.
The appended statistics also show that the negative trend indicated last year and relating to the acceptance ratio of our recommendations, initiatives and legislative proposals, has continued. Of course, to be completely fair, we must point out that at the end of the reporting period some of the responses to these recommendations and proposals were still awaited, and thus the discrepancy between the two figures may yet decline and the ratio improve. Nevertheless, we have to conclude that, owing to their misinterpretation of Act LIX of 1993 on the Parliamentary Commissioner for the Rights of Citizens (hereinafter: Ombudsman Act), some of the authorities concerned have considered themselves – on more than one occasion –authorised to “revise” the report of the Parliamentary Commissioner, even though in the event of disagreement they are merely entitled to submit the matter to a higher authority.
Concerning the legislative proposals, one of the problems is that some ministries – in a manner that is otherwise unobjectionable – try to involve the Commissioner in legislative preparations by requesting his opinion of draft bills, thereby pre-empting any potential infringement of the Constitution. In some cases, however, the ministries treat the Commissioner’s opinions merely as part of the process of public administrative conciliation, that is, “as negotiable commentaries” rather than as measures taken under Section 25 of the Ombudsman Act
The other problem is that some ministries, without taking any real position on the Commissioner’s proposal, either cite a later act of legislation that is to be passed at an unknown point in time as the response to the issue mentioned in the proposal or, referring to the lack of a political consensus (e.g. where any legislation would require a two-thirds majority), make no attempt whatsoever to address the violation through the passing of legislation.
By far the most important event in Europe with relevance for minorities was the adoption by the ECRI (European Commission against Racism and Intolerance) of general policy recommendation no. 7 on national legislation to combat racism and racial discrimination.
Since its formation under the auspices of the Council of Europe in 1994, this commission of independent experts has regularly compiled country reports on the member states. The other main area of its work is the formulation of so-called general policy recommendations. The above-mentioned recommendation no. 7 is probably the most significant to have been adopted so far. After more than eighteen months of preparation and a long process of professional consultation, the Commission adopted the text of the recommendation at its meeting in December 2002, and it was then made public by the Committee of Ministers on 15 January of this year.
The recommendation groups together the requirements that must be met by the legal systems of the member states. This international legal regulation is one of the most comprehensive of the various agreements in the same field, including Directives 2000/43/EC and 2000/78/EC of the Council of the European Union.
By its very nature, the recommendation is non-binding, but since the domestic legal regulations are now being prepared, it is worth referring to it in detail.
The preamble ends as follows:
“(the ECRI) Recommends to the governments of member States:
a. to enact legislation against racism and racial discrimination, if such legislation does not already exist or is incomplete;
b. to ensure that the key components set out below are provided in such legislation.
Having defined the terms racism and direct/indirect racial discrimination, the recommendation then lists in detail – and this is the real novelty – the general requirements placed on the entire legal system, including the all branches of the law, i.e. constitutional, civil, administrative and criminal law.
Particularly exceptional are several conclusions made in connection with the constitution: for instance, the expectation that the constitution should not merely enshrine the principle of equality, but should also define the right to equality as a fundamental right of each individual and its application as an objective of the state. In the Commission’s view, constitutions may declare (and this is important in the context of the current domestic debate) that the exercise of freedom of expression, assembly and association may be restricted with a view to combatting racism – and as long as any such restriction is in conformity with the European Convention on Human Rights.
The chapter on civil and administrative law lists in detail the forms and manifestations of discrimination. These are: segregation; discrimination by association; announced intention to discriminate; instructing another to discriminate; inciting another to discriminate; aiding another to discriminate. It obliges public authorities to apply equal treatment in all areas, including in relation to their partners – whatever the manner of their relationship (for example: contractual).
It lists the areas where discrimination may occur (regardless of whether this is in the private or public sphere), namely: employment; membership of professional organisations; education; training; housing; health; social protection; goods and services intended for the public and public places; exercise of economic activity; public services.
In addition, this part also refers to solutions concerning the procedural (for instance, reversal of burden of proof), institutional and sanction system, which are already known from elsewhere.
Since the part on criminal law is almost completely new in its philosophy and because the domestic debate in this area is still underway, it seems warranted to cite the text word for word:
Criminal law
18. The law should penalise the following acts when committed intentionally:
a)
public incitement to violence, hatred or discrimination,
b) public insults and defamation or
c) threats
against a person or a grouping of persons on the grounds of their race, colour,
language, religion, nationality, or national or ethnic origin;
d) the public expression, with a racist aim, of an ideology which claims the superiority of, or which depreciates or denigrates, a grouping of persons on the grounds of their race, colour, language, religion, nationality, or national or ethnic origin;
e) the public denial, trivialisation, justification or condoning, with a racist aim, of crimes of genocide, crimes against humanity or war crimes;
f) the public dissemination or public distribution, or the production or storage aimed at public dissemination or public distribution, with a racist aim, of written, pictorial or other material containing manifestations covered by paragraphs 18 a), b), c), d) and e);
g) the creation or the leadership of a group which promotes racism; support for such a group ; and participation in its activities with the intention of contributing to the offences covered by paragraph 18 a), b), c), d), e) and f);
h) racial discrimination in the exercise of one's public office or occupation.
19. The law should penalise genocide.
20. The law should provide that intentionally instigating, aiding, abetting or attempting to commit any of the criminal offences covered by paragraphs 18 and 19 is punishable.
21. The law should provide that, for all criminal offences not specified in paragraphs 18 and 19, racist motivation constitutes an aggravating circumstance.
22. The law should provide that legal persons are held responsible under criminal law for the offences set out in paragraphs 18, 19, 20 and 21.
23. The law should provide for effective, proportionate and dissuasive sanctions for the offences set out in paragraphs 18, 19, 20 and 21. The law should also provide for ancillary or alternative sanctions.
The recommendation, which is adjoined by a detailed explanatory memorandum, concludes by formulating several general requirements – some of which are already known – such as: the establishment of a specialised legal protection body and the development of an effective and rational system of enforcement.
II.
The right of minorities to self-identity and self-government
1.
2002: the year of local minority self-government elections
1.1. The identity of the individual and the community, individual and collective forms of self-identity, and related constitutional rights
In 2002, for the second time in the eight years since his appointment, the Parliamentary Commissioner for National and Ethnic Minority Rights had the opportunity to observe and evaluate the general minority self-government elections.1
In the course of an analysis of the 1998 minority self-government elections, we pointed out numerous problems whose resolution required specific tasks to be fulfilled in the legislative field: the demand was made for an amendment to the complete minority legal position and, in this connection, to the electoral (suffrage) laws.
Although they are probably widely known, we should like to summarise and briefly present the issues that remained unanswered during the 1998-2002 parliamentary term.
Amongst the basic issues awaiting a response, one should first mention the right to have an identity and the content of such identity. To the superficial observer it may not seem to be so, but in fact whether we talk of the right “to have an identity” or the right “to choose an identity” does have a particular significance. For the difference is an essential one. “Choice” of identity will only have a point if the choice that must be made is between national bonds that really do exist, where the choice means the individual’s expression of a preference. (This may typically be the decision made by the offspring of mixed marriages, when determining which language to study or when choosing which upbringing their children should have etc.)
In contrast to the expression of existing identity, choice of identity does not mean a decision made at will. Thus a Hungarian citizen cannot freely choose – on the basis of a possible momentary inclination – to which of the minority communities in a legal sense he wishes to belong. Still, he does have the fundamental right to have and express real self-identity.
Another important and related question is whether the right to self-governance is a right of the minority community or a right of the individual, or whether, when it comes to belonging to a group, an individual may make an autonomous decision, that is, whether or not the members of a community may exclude somebody from their ranks. Last but not least, one must also decide whether or not there can be some kind of “cross-over” between the various minority identities, that is, whether or not an individual may abandon his belonging [to a community] based on his national-ethnic origins and, if so, whether he may then choose to belong to another. In the following, we attempt – as far as possible – to provide definitive answers to these questions. In this connection we should like to emphasise that in the course of our endeavours we strive not merely to analyse the legal provisions in isolation but also to elaborate on the practical experiences of the Parliamentary Commissioner for National and Ethnic Minority Rights.
1.1.1.
Freedom of choice of identity
Section 7(1) of Act LXXVII of 1993 on the Rights of National and Ethnic Minorities (hereinafter: ARNEM) contains the following declaration: “The acceptance and expression of belonging to a national or ethnic minority is a fundamental, exclusive and inalienable right of the individual.”
Although ARNEM contains a further high-sounding – seemingly unquestionable – statement, according to which “the right to national or ethnic identity and the acceptance and manifestation of belonging to a minority does not preclude the recognition of dual or multiple ties”, nevertheless the meaning of multiple ties is far from clear. What could have been the legislator’s objective?
The legislator obviously wished to ensure that any minority law provisions should take into account relationships between natural persons belonging to the majority and to the minority; mixed marriages could clearly give rise to children of dual identity. Moreover, there was always the possibility that marriages of individuals belonging to different national minorities could then give rise to individuals of dual or even multiple identity. The law, however, aims to ensure linguistic and cultural autonomy – that is, the national minority’s self-identity – in order that the preservation of identity should become a real possibility as an alternative to assimilation. Linguistic identity has no legal relevance, so long as it remains in the private sphere: the issue of language use acquires a legal dimension only in the course of the use of public services or when certain public roles are enacted. For instance, the right to make use of minority language educational institutions typically presupposes a choice, for parents must decide which school their children should attend.
The complex network of institutions of public law established with a view to ensuring the above-mentioned autonomy is the system of minority self-governments, the essence of which is the participation of members of the minority community or elected representatives of such communities in the administration of local public affairs, where these have an effect on them. It follows logically from this – and this is declared by the Act – that a national minority may only possess one self-government in any given municipality, whose function it shall be to express the interests of a specific national group (a single ethnic community). In contrast to municipal governments, however, minority self-governments do not have public authority functions: owing to the prohibitions of Act LXV of 1990 on Local Governments (hereinafter: Local Government Act) they may not provide for matters of authority; nor may they offer public utility services. Nevertheless, in terms of their establishment and operation, they do display great similarities with the municipal governments: for instance, local community voters elect members of the local minority self-governments at the same time and under the same circumstances as they elect representatives to the municipal governments.
An important difference, however, is that minority self-government elections are not held automatically; they must be initiated by electors belonging to the one and the same minority. And in the event of elections being held for several minority self-governments, those entitled to vote may only vote for candidates of an individual minority.
Thus, to a certain extent, the right of minority communities to self-governance depends on the expression of identity. However, it is sufficient for a real public role – that is, to win a seat in a self-government – if a candidate declares he is prepared to represent a given minority. All electors – according to their own wishes – are entitled to exercise their active or passive suffrage in minority self-government elections, that is, to decide whether to vote for the candidates or to stand as candidates. As early as during the 1998 elections, there was some debate about whether a national group or ethnic community living in a municipality, or the members of a representative body elected by such a group/community, may call into question a fellow representative’s identity. The laws in force unfortunately give no answer to this question, and yet in practice this is a problem of legitimacy that goes right to the core of the minority self-government system. Since the most recent Roma self-government election in Jászladány, we must be aware that, owing to – inter alia – the deficiencies of the legal regulations, a comprehensive review of the provisions of minority law is inevitable; or to put it another way, there is a need for a “change of paradigm” in the field of minority rights.
1.1.2.
Application of the right to self-governance
The basic right to have and preserve identity is also closely connected to the right of the national and ethnic minorities to self-governance. The difference between the two fundamental rights lies in the fact that whereas the right of self-identity is a right of the individual, the right to self-governance is typically a community right.
To demonstrate our point, it is worth referring to several items in the preamble of the Local Government Act and its introductory provisions. According to the Local Government Act “local self-governance enables the local community of voters to independently and democratically administer local matters directly or through the elected local government”. Section 2(1) of the same Act declares that “local governments exercise the principle of popular sovereignty, and express and realise local popular will in local affairs in a democratic manner and creating a broad publicity”.
Thus the essence of self-governance is that local communities organise themselves and take decisions themselves – within the confines of the law. In this respect, there is no difference between local municipal governments and minority self-governments. The national and ethnic minorities in Hungary – under the declarative provision of the Constitution – are “constituent elements of the state”, and thus it is their specific constitutional right to establish local minority self-governments in the municipalities (including the districts of the capital city).
The provisions of Article 68 of the Constitution render the minority communities – and their members – the recipients of the special minority rights, and thus the right to establish minority self-governments. People who belong to majority society may not exercise minority rights, even if their support for such minorities and their willingness to help is beyond doubt or may be regarded – in specific instances – as extremely “useful”. In its present form, however, Article 70(1) of the Constitution appears to declare that all adult citizens shall have the right to vote or be elected in minority self-government elections. In connection with an analysis of the 1998 minority self-government elections, we have already noted in several reports the apparent contradiction between the provisions of Articles 68 and 70 of the Constitution. For Article 68(4) guarantees the national and ethnic minorities (and their communities) the basic right to self-government, whereas the provisions declaring the generality and equality of voting rights [contained in Article 70(1)] and a simple but easily misunderstood linguistic analysis of the text may lead to the conclusion that “all adult Hungarian citizens living on the territory of the Republic of Hungary” may vote or may be elected at minority self-government elections, thus all citizens have passive and active voting rights.
A logical interpretation of the cited constitutional regulations clearly demonstrates, however, that the right to participate in minority self-government elections is not a fundamental right to be enjoyed by all Hungarian voters, but enables the special public legal role of members of the minority – serving the application of the rights of self-governance – to be enacted. The contradictions between the provisions of the basic law were resolved by the constitutional amendment adopted by Parliament on 17 December 2002. If these provisions enter into force at the same time as the act proclaiming the international treaty on Hungary’s accession to the European Union, the “constitutional basis” to the generality of voting rights at minority self-government elections will be ended – that is to say, a simpler and more transparent legal regulation will enter into force.
Regarding the future (“de lege ferenda”), therefore, conditions are assured for legislation enacting the execution of the Constitution to regulate differently the entitlements to vote in the case of local governments and minority self-governments.
A minority self-government system based on general suffrage violates the application of the fundamental constitutional rights of the minority communities, because there is no guarantee that it will be the community concerned that will end up electing the members of the self-government representing the community. For there is no guarantee that people belonging to the community that they seek to represent, will be the only candidates standing in the minority self-government elections. The solution would be for the Parliament to harmonise the suffrage provisions with the new provisions of the Constitution, but this would require a change of strategy on minority policy and in the legal sphere too. With a view to the adoption of the new strategy, we should like to cite the following.
In conformity with the Local Government Act, ARNEM emphasises that “the self-governments constitute the basis of the democratic system, the National Assembly regards the establishment of minority self-governments, their activities, and thereby the accomplishment of cultural autonomy, as one of the most important preconditions for the enforcement of specific minority rights”.
Thus by adopting ARNEM the legislator determined, in a legal sense, the thirteen minorities that are considered to be indigenous national groups, having been living on the territory of the Republic of Hungary for at least one century, whose members hold Hungarian citizenship and who differ from the rest of the population in terms of their own mother tongue, cultures and traditions, and who “prove to be aware of the cohesion, national or ethnic, which aims at preserving all these and at articulating and safeguarding the interests of their respective historically developed communities”.
At the same time, the legislator expressly ruled out the possibility that the Act could be applied to refugees, immigrants, and permanent foreign residents and to stateless persons. During the minority self-government elections of 2002 we could observe for the first time that not only were non-members of the minority community taking part in the establishment of the minority self-governments, but also even people who are not even Hungarian citizens.
The immigration rules do indeed allow immigrants – or, to use the most recent terminology, those who have taken up residence here – to take part in local government elections. Given that the local municipal government elections and the local minority self-government elections are held at the same time and in the same place, it is possible that persons of various nationalities – Chinese, Vietnamese, Mongolian, Russian, etc. – who have taken up residence in Hungary but have not yet acquired Hungarian citizenship may have participated in the formation of minority self-governments. The absurdity of the situation needs no further explanation, for the essence of self-governance is called into question if non-members of a community are in fact electing the legal representatives of that community – moreover, in this case, non-members with neither special minority rights nor even the (“general”) rights derived from Hungarian citizenship.
1.2.
An evaluation of the minority self-government elections
of 2002
In order to show what happened during the minority self-government elections of 2002, it would seem necessary to cite some of the main conclusions of a previous inquiry made by the Parliamentary Commissioner in 1998. The self-governments of the national and ethnic minorities are the bodies of self-administration of the minority communities and the institutional guarantees of the application of minority rights. One of the main elements of the public legal nature of the minority self-government system is that it is established through elections. At the same time, elections are not merely the method, laid down in law, by which minority self-governments are formed, for they also have an important legitimising role as the means of expressing the will of voters. The fundamental constitutional requirement placed on the minority self-government system is self-governance, that is, that the given community should establish the body that serves to represent it. Minority self-government elections will be legal, if they take place in accordance with the legal regulations. These, however, may only be considered as completely legitimate, if their formation can be traced back – through the process of elections – to the minority community that they represent.
The abuses that took place during the 1998 elections prove that, owing to the deficiencies of the legal regulations, some individuals that were not considered part of a community by members of the same community, were able to acquire seats on minority self-governments. After the 1998 elections, the Parliamentary Commissioner for National and Ethnic Minority Rights made several proposals aimed at preventing violations in connection with minority rights. He concluded that the legal provisions failed to guarantee the application of the right of the minorities to self-governance, and thus considered it necessary that an amendment be made to the law, with due regard to the following “requirements”:
• where possible the right to vote should only be exercised at minority self-government elections by citizens belonging to the particular minority;
• members of minority self-governments should be, as a rule, citizens belonging to the particular minority;
• the rules governing the holding of electoral meetings for the election of national minority self-governments should be changed.
Some of these legislative proposals have been realised through the adoption of Act LXV of 1999 amending ARNEM, of Act LXIV of 1990 on the Election of Local Government Representatives and Mayors, and of Act C of 1997 on the Election Procedure. Having regard for the conclusions that we drew while evaluating previous minority self-government elections, and in response to our specific proposals, the National Assembly abolished the institution of “supplementary election”. Thus, in municipalities where minority governments are not formed in an election year, the next opportunity for establishing a representative body arises only four years later.
The basic objective of the bill on minority suffrage was to ensure that representatives in the bodies really do have personal links with the given minority. With this in view, it did not seek to prevent, using legal means, participants in the local municipal government elections from taking part and voting in minority self-government elections. Nevertheless, it did stipulate that the two elections should be held at different locations, so that, where possible, only members of the minority in question would take part in the vote. Candidates seeking election were required to state that they did belong to the minority, which therefore excluded them from becoming representatives of other minorities. In order to prevent violations, the possibility of acquiring seats on favourable terms in the local self-government would have ceased. The proposal would have introduced the institution of minority delegate assemblies at the national minority self-government elections.
The chairmen and experts of the national self-governments are also took part in the codification work. Nevertheless, some of the bodies did not support the adoption of the legislative proposals. The bills, which were submitted after considerable delay on 12 November 2001, were not even debated by Parliament.
The elections of 2002 were held without the legal guarantees that might have prevented the repetition of the anomalies of previous elections. The minority organisations continually pointed out that the election abuses would probably be repeated on an even larger scale in 2002. For this reason, we kept an official watch of the formation of the minority self-governments.
The purpose of our inquiry was to reveal violations, to review comprehensively the legal provisions associated with minority self-government elections, and to draw conclusions that could be used by the legislator to further develop the minority legal provisions. Our objective was to survey the administration of local and national minority self-government elections, from the initial election announcement to the division of seats, and including the putting up of candidates and the determining of election results.
1.2.1.
The initiation and announcement of an election
The holding of a local minority self-government election must be announced by the local election committee if at least five citizens professing to belong to the same minority and permanently residing in the municipality request such an election by filling in the sample form contained in the annex to ARNEM. Such requests must be submitted within ten days of the President of the Republic announcing the holding of local government general elections.
The most typical complaints made in connection with the elections relate to the announcement of elections in municipalities where there are no minority communities.
The danger of election anomalies was also apparent from data on the 2001 census published by the Central Statistical Office. These data showed that there were indeed some municipalities in which minority elections had been initiated despite the fact that at the time of the census nobody had professed to be a member of the given minority or specified the language of the minority as his/her mother tongue – or even indicated cultural ties to the national group. Under the laws in force, elections had to be announced wherever the submitted requests were in formal compliance with the legal requirements. Nevertheless, it may be stated that elections were held in some municipalities having no minority communities. For it is difficult to imagine that citizens would have concealed their identity at the time of the census, but then have given their names and addresses in order to initiate minority elections. (We do not think that the census data relating to the national and ethnic minorities would be questionable.) These cases shook the faith of minority communities in the fairness of elections and endangered the legitimacy of the minority self-government system. For these reasons, we requested the position of the National Election Committee (NEC) on the following issues:
a) Does a contradiction between the census data and the initiation of a minority election give grounds for the conclusion to be drawn that an election in a given municipality fails to serve the application of the constitutional right of the minorities?
b) Is it possible to take legal measures to prevent elections being held in municipalities in which according to the census data there is no minority community?
c) Do the laws in force serve to prevent candidates without minority identity from standing as candidates in minority elections?
d) Is it possible to take steps against individuals who have acquired Hungarian citizenship on favourable terms by professing Hungarian ethnicity from standing as minority candidates?
By way of response, at its meeting held on 24 August 2002, the National Election Committee issued the following statement: “[the Committee] considers the election of local minority self-government representatives and of local minority self-governments to be one of the most important conditions for the application of the special rights of the minorities. The National Election Committee considers it particularly important that the establishment and operation of the minority representative institutions serving the application of minority rights should take place in the spirit of the related constitutional and legal regulations, in harmony with international commitments, and with due regard for the requirement of bona fide and proper legal practice. The phenomenon of minority self-government institutions being elected on behalf of non-existent national and ethnic minorities for the purpose of applying their rights is incompatible with this requirement. Such violations also weaken the legitimacy of the minority self-government institution.”
Clearly, the National Election Committee was unable to identify the legal guarantees that would have prevented the violations and thus – quite rightly – all it could do was merely formulate the requirement of bona fide legal practice.
The deficiencies of the legal regulations may well have contributed to the fact that out of a total of 1997 minority election initiatives, elections were announced in 1973 cases, and of these, the elections failed in just 103 cases owing to a lack of the necessary number of candidates. There are just a few known cases of election bodies rejecting the announcement of elections in municipalities where non-members of the minority had submitted the election request.
In a district of Budapest, representatives of the local self-government requested the holding of a minority self-government election. But in the requests submitted to the election committee they did not profess being members of the given minority. They then justified their actions by declaring that they had wished to assist the minority community in exercising its rights.
In our stated position, we pointed out that only real members of the minority community were able to request the announcement of an election. Consequently, a request made by anybody else would be invalid – just as it would be if someone failed to supply the requested personal data or was not residing permanently in the particular municipality. The local election committee agreed with this interpretation and, referring to the failure to meet the legal requirements, did not announce the holding of an election.
In the same district of Budapest, five individuals requested the announcement of the holding of another minority self-government election. Two of the five later declared in a statement to the election committee that they did not belong to the given minority and that they had signed the request based on a misunderstanding.
In our view, an initiative is invalid where an elector is not a member of the minority community that is the recipient of the constitutional right to self-governance. Under the legal regulations there is no possibility of interpreting a statement by initiators of an election that they do not belong to any minority as the cancellation of their previous election statement. Instead, the reason why the initiative must be considered invalid is that the legal requirement – the intention of a certain (legally defined) number of members of the given community to establish a self-government – is clearly absent. The local election committee rejected the request for the election on the basis of this argument. However, there have also been instances in which self-governments could not be established despite the express will of the minority community. The announcement of minority self-government elections must be requested, subject to forfeiture of right, within an unrealistically short period of time – i.e. ten days – of the announcement of general local government elections. It is easy to appreciate that the ten-day period may include two weekends, that is, four non-working days. Moreover, the decision of the President of the Republic is usually or “customarily” announced in late summer (in late July or in August). The situation is made more difficult by the fact that in the summer of 2002 the President of the Republic announced the date of the local government elections unusually early, at a point in time when many people were on their summer vacations – perhaps abroad – and thus unable to find out about the deadlines. Thus in 2002 minority self-government elections had to be initiated by 4 p.m. on 22 July. Failure to meet this deadline resulted in forfeiture of right and an election could not be held. We know of a municipality where the necessary declarations were submitted late, and for this reason the election initiative was rejected.
In a district of Budapest, an election was not announced because two of the initiators gave the numbers of their personal identity cards rather than their personal identification numbers.
Those who initiate elections must identify the municipality, as well the minority self-government that is to be established; they must also list their name, permanent address, and personal identification number; and they must declare that they have the right to vote and profess membership of the given minority.
Failing such, the election bodies considered the initiative invalid. Against such practice, it could be argued that the minority community was denied the possibility of exercising its constitutional right to self-governance on merely formal grounds. The data requested from initiators may be classified in two groups: some data can be acquired by the election bodies from their own records; other data, however, will only become known to them if the electors declare it. The latter group includes data on membership of a given minority as well as the name of the minority for which the election is requested. All other data serve to identify the initiator; that is, to prevent statements being made on behalf of other persons, thereby misleading the election bodies.
Voters who are unaccustomed to legal terminology cannot distinguish between the personal identification number and the personal identity card number. The latter piece of data could also be used by the election bodies to identify a person. With this in mind – and if all other conditions have been met – we do not consider it warranted to reject the announcement of an election.
The view of the election bodies is particularly difficult to understand in light of the fact that they do not request similar requirements of validity, as laid down in other laws, in such a consequent manner from other voters. In its Position No. 2/1998. (III. 14.) the National Election Committee concluded that “with a view to exercising the will of voters (…) nominations on which the name of a candidate appears in a different form from that on his birth certificate but which is still clearly identifiable (…) must be accepted as valid”.
Concerning the announcement of elections, the most serious violation of which we are aware cannot be traced to the deficiencies of the legal regulations, rather – if proven – could be used to establish a criminal offence.
One complainant stated that members of the minority community requested the announcement of an election. The request was submitted to the Mayor’s Office. Several people allege that the mayor, by holding out the prospect of various detriments, persuaded several initiators to revoke their petition for the announcement of an election.
An examination of the documents demonstrated that the election initiatives really had been submitted to an administrator at the Mayor’s Office, but that they had not been forwarded to the local election committee. According to the notary public, the election office mistakenly believed that the initiators had revoked, under lawful circumstances, their declarations requesting the announcement of the election.
Following our request, the election bodies took action immediately; thus, on the last day before the legal deadline, they announced the minority self-government election.
In the course of the inquiry, owing to the various and contradictory statements, it proved impossible to determine whether the “revoking” of the election initiatives – which in a legal sense is not possible – had taken place based on the freewill of voters, or whether they had abandoned their original intentions, following the mayor’s threats. The attempt to prevent a minority self-government election may have constituted a criminal act (abuse of office or a crime against the system of elections, referendums and popular initiatives), and we therefore requested the police to clarify events. (Several months have now passed, but we still have no answer from the investigating authority.)
Members of the minority community are the only people entitled to initiate a minority self-government election. The demographics of a given municipality and its “affinity” for public affairs may change. It is therefore warranted to retain the provision requiring elections to be requested even in those municipalities in which minority self-governments already operate. It is doubtless true that if the minority representatives in a given municipality dissolve the representative body due to a complete lack of interest, then without an expression of intention to form a community self-government it would be unnecessary (and not least expensive) to automatically announce a minority self-government election. The legal regulations must allow voters that have incorrectly or deficiently filled out an initiative (for example, where they have failed to sign it themselves) to correct the initiative – within a period of time set by law or at the request of the election body, or to make up for the deficiencies, provided that they can be identified using the data available. In the course of amending the law, one should examine whether the ten-day deadline (with legal forfeiture) for the submission of initiatives could be extended. An election is a process lasting several months and thus – as already noted above – we see no constitutional reason or purpose for this unrealistically short deadline. Another point for consideration is whether, in the event of force majeure circumstances that everyone appreciates, the deadline could be extended still further – subject, of course, to strict conditions.
1.2.2.
The standing of candidates
Independent candidates or the candidates of minority organisations may stand in local minority self-government elections. Minority organisations are social organisations that according to their court registration represent one or other of the national or ethnic minorities. Anyone who fulfils the conditions may stand as a candidate (adult Hungarian citizen, place of domicile or residence is in Hungary, able to act, not banned from practising public affairs); a candidate must be recommended as the minority candidate by at least five voters living in the constituency, and he/she must declare, by filling out a form, to undertake the representation of the minority.
We received complaints or informal indications from all thirteen minorities that non-members of minorities had stood as candidates at the elections. Due to the lack of exact data, we may only guess that the greatest number of pseudo-minority candidates appeared for the Bulgarian, Romanian and Armenian elections. There were numerous cases of candidates who had previously tried to win seats under the colours of another minority. There were also several politicians that had been pushed out of national or local public life who then reappeared as minority candidates.
We had no choice but to inform complainants of the lack of any legal measures that could be used to take a stand against violations. There was no possibility of preventing candidates that did not belong to the minority community or that were seemingly driven by financial or other selfish interests from taking part in the elections.
The election laws offer no guarantee whatsoever that only candidates with links to the minority community may stand for election. Due to the inadequacies of the regulations, anybody may appear “in the colours” of the minority and may even – at the end of each term – select from among the communities that he wishes to represent.
By defining the national and ethnic minorities, ARNEM established a system of considerations for determining the objective criteria of a given community. These requirements are not formulated merely at the level of the community, but also vis-à-vis individuals that wish to have themselves recognised as members of the minority. An individual cannot profess membership of a minority community on the basis of his own subjective decision. He is merely entitled to renounce any manifestation of his real identity.
The provision of ARNEM according to which “The profession and expression of belonging to ... any of the national or ethnic groups … is the exclusive and inalienable right of the individual” is in conformity with the Council of Europe’s Framework Convention for the Protection of National Minorities. The international agreement – to which Hungary also acceded – contains the following formulation: “Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.”
According to the explanatory report of the framework convention, the cited provision “does not imply a right for an individual to choose arbitrarily to belong to any national minority. The individual’s subjective choice is inseparably linked to objective criteria relevant to the person’s identity.”
In our view, in order to apply the constitutional right of the minorities to self-governance, conditions must be established that would ensure that only candidates belonging to a given community and sharing its identity stand for election. The right to be able to choose (“passive suffrage”) may, in principle, be restricted as follows:
1. Where the election system is based on self-profession [of one’s belonging to a minority], candidates must state that they belong to the particular minority. Thereafter, they will not be able to stand as candidates of other minorities – either at local self-government elections or at minority self-government elections. When exercising the passive right to vote, there would be no possibility of expressing multiple identity. (This already applies in the case of active electoral rights, because it only possible to vote – validly – for the candidates of one minority. Voters may only assist in the establishment of a single community’s self-government, regardless of the possibility that they may have links with several minorities.)
The state may act to restrict the basic right if the protection and application of another fundamental right can only be assured in this way. A further requirement is that there should be a proper correlation between the importance of the desired aim and the extent of the legal violation undertaken for its sake, and that the content of the basic right “should not change significantly”. The obligation pertaining to the profession of identity would meet these two requirements, for the law would assure the application of the constitutional right to self-governance as well as the prevention of non-bona fide legal practice, that is, the legal restriction would be necessary and proportionate.
In knowledge of the election results, however, it may be stated that self-profession [of one’s belonging to a minority] cannot offer protection against those people who seek to become members of self-governments with the express intention of thwarting the effective protection of the interests and rights of the minority community.
2. The community in question legitimises the participation of candidates in the minority self-government elections. That is, someone may be a candidate who is a member of one of the minority organisations or has the recommendation of such. This regulation questions the independence of candidates; it could only be successful if there were some guarantee that the given minority really had established the organisation.
3. Candidates have to meet some objective criteria of belonging to a minority community that are stipulated by law. These requirements could only be elaborated in co-operation with the community concerned. Generally, there is agreement that minority self-government candidates should demonstrate knowledge of the culture, traditions or language of the given minority. Nevertheless, there must also be rules regulating who (which organisation or community) would determine, and within what framework, whether a candidate had met the criteria.
In the case of the latter two solutions, if a candidate launched an objection to his/her exclusion, it would have to be decided whether such an objection was warranted and, if so, what manner the legal remedy should take.
The five nominations necessary for a candidacy do not express real support among the particular community. For this reason, a larger number should be determined and, where possible, a distinction should be made between the various types of municipality.
1.2.3.
The minority self-government campaign and its politicisation
In most municipalities, campaign activity for minority self-government seats was less vociferous than for local municipal government seats. In many cases, the number of candidates was equal to the number of seats, so there would have been no reason for campaigning. Nevertheless, it may be noted that external forces tried harder than ever before to influence the results of the minority self-government elections.
In several municipalities flyers were disseminated that insulted or humiliated members of the former minority self-governments. One local government representative tried to win the support of voters by campaigning against members of the minority self-government. Allegations voiced in the course of a clearly “negative” campaign may have led to the development of a negative image of minority candidates. Nevertheless, the election bodies failed to conclude that an infringement of the law had taken place.
Judgement of election complaints and objections is the task of the election committees and the courts. For this reason, we could not inquire into these matters. We were able, however, to inform complainants of the legal measures that they may take against the disseminators and distributors of the flyers: they may, for instance, launch civil proceedings due to a violation of their personal rights or, in more severe instances, they may file criminal charges. Such proceedings, however, will not change the result of an election and offer no remedy where a candidate has failed to gain a seat due to negative campaigning.
We received several complaints that political parties had requested the population – in local newspapers and flyers – to support various minority self-government candidates.
The legal regulations governing political campaigning do not contain a ban on party activities in support of minority representatives. The only ban is on minority organisations establishing joint lists and candidates entitled to preferential seats with parties. Thus, at present, calls made by parties or other political organisations in support of minority candidates do not violate the law. Nevertheless, such a campaign may raise moral or even constitutional concerns.
Local minority self-governments are the institutional guarantees of minority autonomy. Their basic task is to represent the minority community of the given municipality. The exercise of the right to self-governance will be jeopardised, if political forces seek to influence the results of minority elections. The political parties indisputably enjoy a great degree of freedom and autonomy in the expression of their opinions and, in a democratic and constitutional state like Hungary, they are the most important channels for the expression of the popular will. Thus, to prohibit them from taking a stand in connection with the results of the minority self-government elections or even perhaps from taking part in the campaigns of minority organisations, would not be possible. However, we do not consider it fortunate – and could even regard it as contrary to the objectives set out in the minority legislation, if political interests were to prevail, rather than the preferences of the minority. The issue definitely needs to regulated by law, but a basic prerequisite for the drafting of such a law would be the development of a consensus amongst the political parties (the signing of an agreement by them) to the effect that they would “leave untouched” the minority self-government elections. Without a consensus, however, the fear is that various minority organisations will seek political allies in the parties – and vice versa. From then onwards, the elections will not basically concern which election organisation is best able to represent the interests of each of the minorities; instead, the self-governments will be formed along “left-wing” and “right-wing” political lines.
The consistent position of the courts has been that, in election matters, objections made without evidence are not suitable for launching an inquiry on the merits of the case. Candidates, however, are not detectives; they cannot find out who is really behind the campaigning against them. The regulations on election campaigning should be precisely specified in the law on voting rights, and there is also a need to introduce more effective sanctions against actions and individuals that violate the principle of fair elections.
1.2.4.
Elections and election results
Anybody who is entitled to vote in the local government elections may also take part in the local minority self-government elections. The electors of both bodies are listed in a common register kept in each municipality. The two elections take place on the same day and in the same polling stations. Voters automatically receive voting slips for the minority self-government election as well – regardless of whether or not they are members of a minority community.
Minority self-governments are elected under the rules of the so-called “small list system”. Voters may vote, at most, for as many candidates as may become members of the representative body. The names of the candidates are listed in alphabetical order on the voting slips. By law the number of minority self-government representatives is set at three or five – depending on the population size of the particular municipality. In order to be valid, votes must be cast for the candidates of a single minority. Representatives will be the candidates receiving the greatest number of votes. The election will be valid if at least fifty or – in municipalities with more than 10,000 inhabitants and in districts of Budapest – at least one hundred voters cast valid votes. Candidates that do not receive a single vote cannot become representatives.
It was obvious even before the day of the election that some candidates were standing in the election for reasons other than their personal bonds [to the particular minority community]. Their decision may have been influenced by the fact that they saw a greater chance of acquiring a seat in this manner than if they were to stand in a local government election – or in a minority self-government election that did in fact reflect their identity.
Shortly before the election, by way of the media, the Office for the National and Ethnic Minorities (ONEM) asked candidates who did not belong to the minority community to voluntarily step down. It then called upon voters to cast their votes for candidates that really were members of the minority communities or, where they did not know of any such candidates, to refrain from voting.
It is impossible to know whether this appeal helped to reduce the number of votes cast for “pseudo-minority” candidates. It is a fact, however, that the ratio of invalid votes in the minority self-government elections was very high. One reason for this may have been that a great number of voters were unable to make a responsible choice among the unknown candidates, and thus cast invalid votes. But another factor may have been that many voters, unaware of the election rules, voted for candidates of several minorities.
Overall 1870 minority self-government elections were held in 1308 municipalities across the country. In 1998 the number of directly-elected minority self-governments had been 1309; their number now grew to 1773. (This figure does not include minority self-governments that were established indirectly or through transformations.) The greatest increase – more than threefold – was registered among the Ruthene and Ukrainian self-governments, but the numbers of Bulgarian and Polish minority bodies also doubled. The Roma minority self-governments displayed the largest nominal increase – voters deciding on the establishment of 1002 bodies, in place of the previous 764 bodies.
With full knowledge of the election results, it may be stated that violations occurred amongst all the minorities. Our office received many complaints that voters in municipalities had awarded seats to non-members of the minority. In many instances, candidates that did not have the support of the particular minority community or were indeed opposed by the community won seats. “Pseudo-minority” candidates were particularly successful in the districts of Budapest and in the larger municipalities, but there were some cases in small villages, too. We even know of a municipality where just one of five members of the minority representative body has minority identity. Real members of the local minority community were pushed out of the minority representative body in order that a foundation school could be established with the consent of the “pseudo-minority” self-government. In another village, voters re-elected as a minority representative the local mayor, who, during the previous term, had sought to incapacitate the three-member minority representative body, by refusing to participate in any of its meetings.
In none of these cases were we able to offer assistance to the complainants, because each of the elections had been held in accordance with the law in force.
In relation to the previous term, there was a rise in the number of minority self-governments that were not backed by real minority communities or whose bodies included one or more representatives that had won seats by finding loopholes in the law.
In the previous election, “pseudo-minority” candidates had won seats on minority bodies merely as the result of the “sympathy votes” cast for them. They had exploited the fact that some voters simply did not know them and were thus unaware of their identity. Some of them probably won seats because their names headed the alphabetical candidate lists on the voting slips.
A new phenomenon was that in some municipalities, members of the majority community voted out real minority candidates from the minority self-governments. This led to the establishment of bodies operating in line with majority community expectations rather than in pursuit of minority community interests. Such self-governments were established in consequence of “non-bona fide legal practice”; for this reason, they may not be considered real institutions of minority autonomy.
The solutions outlined above may help to ensure that only minority candidates that belong to the particular community can stand in elections. At the same time, however, placing conditions on the right to be elected will not be a guarantee in itself that candidates winning seats are really those with the support of the minority communities. Under the current legal regulations on elections, all citizens entitled to vote in a given municipality may take part in the local minority self-government elections. Thus, it is not those directly affected but rather members of the majority that are able to determine who will represent the minority community.
The exercise of the right of the minorities to self-governance may be assured by a reform of the election law as indicated below. We consider such a reform to be absolutely necessary and timely. The solution – which would entail two interrelated “novelties” vis-à-vis previous practice – is as follows:
1. Groups of voters, listed in special registers, would be entitled to take part in the minority self-government elections. It is a fundamental constitutional requirement that the minority communities themselves should be able to elect their representatives –naturally from amongst their own members. It is also a constitutional requirement that voters’ inclusion in the registers should be voluntary. A matter that must be decided is whether inclusion should be subject to an expression of belonging to the minority community or whether voters should also have to meet some other objective criterion. In the latter case, one would have to regulate who would determine, and under what procedure, which voters are to be included in the registers, as well as the forum for legal remedy in the event of an objection to a decision. Under the current legal provisions, the heads of the local election offices, that is the notaries, would compile the registers. Due to the historical experiences of past decades, members of some minorities are afraid of state records. In order to reduce such antipathies and achieve greater acceptance, rather than merely collaborating in the compilation of the registers, minorities could be given the task of keeping the registers under a special legal framework.
2. Local self-government elections and minority self-government elections would be held at different times or at different polling stations. Such rules would theoretically serve to filter out some of the “sympathy votes” that may be considered, according to the above, unconstitutional. Still, this by itself would not offer full legal protection against intentional (“organised”) abuses. It would not substitute for the introduction of voters’ registers, but – as a special technical solution – it would serve as a further guarantee that the majority would not be able to manipulate elections; and it would also help to encourage the participation of larger numbers of community members in minority elections.
1.2.5.
Legal recourse
Candidates, organisations backing candidates, voters and legal persons are entitled to make complaints in connection with violations of the election laws. They may also submit objections to decisions of election committees.
Several people reported that they had contested the election results after “pseudo-minority” candidates won several seats. The election bodies and the courts dismissed the objections, due to the fact that the candidates had lawfully stood as candidates in the elections. One complainant reported that the local election committee had declared its nominations invalid, because the organisation in question had not been entitled to support a minority candidate. The objection submitted was rejected by the regional election committee, which then sent its decision by fax to a telephone company, requesting that it be sent by telegraph. The complainant learnt of the decision after a considerable delay and was thus left with just one day to appoint a legal representative, have the objection drawn up, and ensure that the objection then reached the election committee, located at some considerable distance from his place of residence in the county seat.
The election procedure includes several very tight deadlines (with forfeiture of rights). A complaint or an objection must reach the election committee within three days of the activity or decision to which it relates. The reason for this is that the state of legal uncertainty or flux should last for the shortest possible length of time. The constitutional right to legal recourse will be violated, however, if a complainant is unable to submit an objection within the deadline for reasons beyond his own control (for instance, where he receives the disputed decision late or where his health incapacitates him).
A fundamental condition for the real exercise of the right to legal recourse is that there should be an appropriate amount of time for the submission of appeals. The legislator must determine deadlines for the submission of objections in such a way that the right to legal resource is assured, but that this does not prevent other deadlines arising out of the election procedure rules from being met or lead to unnecessary delays in determining the results of elections.
According to the interpretation of the Constitutional Court, the constitutionality of deadlines for legal recourse should not be judged on the available lengths of time alone. Other factors must also be considered: for instance, whether or not knowledge of the contestable decision can be assured. In the election procedure, it is not only candidates and candidacy organisations that are entitled to legal recourse, but also all voters and legal persons affected. In spite of this, the legal provisions do not require election committees to publish their decisions on complaints and objections relating to minority self-government or local government elections. Thus, there is no assurance that those entitled to legal recourse will actually learn of a disputed decision within the deadline for the submission of their objection, which may doubtless amount to a constitutional violation.
With a view to the application of the right to legal recourse, we suggest that Act C of 1997 on Election Procedure should be supplemented by a provision stipulating that the decisions of election committees should be announced locally in the usual manner. A further warranted change would be to time the beginning of any deadline for legal recourse from the publication of the decision rather than from the taking of the decision by the election committee.
Where a deadline for submitting an election objection is overstepped for reasons beyond the control of the complainant, it would seem worth providing an opportunity for the submission of an attestation petition. Attestation petitions are not means of legal recourse, because they are not directed at the review of contested decisions; instead they serve to avert the consequences of non-imputable defaults. Attestation petitions could be integrated into the election procedure system, because they may not be considered an automatic extension of the deadline, for it is still the prerogative of the dispenser of justice to decide whether or not the reasons cited are sufficient to determine the innocence of the party in default. In itself the opportunity to explain a default does not mean that the recourse procedure is extendable without justification. Nevertheless, the procedural practice could be developed under which election committees and the courts would only accept attestations for default, where the reason for overstepping the deadline deserves particularly consideration: for example, where the party entitled was unable to exercise his right to legal recourse for health reasons (or due to any other circumstance deemed a force majeure).
Within the election system the attestation petition should be an institution applied only under exceptional circumstances, because a fundamental interest here is to determine the election results as soon as possible. Thus, it could be stipulated that such a petition may not be submitted after the legal deadline even where the reason for default will only cease subsequently to this. Another possible solution would be to make the submission of an attestation petition subject not only to the party entitled proving that the default was non-imputable, but also to his supplying new evidence rendering it probable that a violation of the election law has taken place or that a change to the earlier decision has become necessary.
1.2.6.
Founding session
The founding session of the local minority self-government must be convened within fifteen days of the founding session of the local municipal government.
Numerous minority self-government representatives requested information about whether or not they are subject to the rules of incompatibility governing representatives of local municipal governments that entered into force on the day of the election. In various municipalities these rules were ignored, while elsewhere a minority representative was told to resolve a conflict of interest.
With a view to dispelling the legal uncertainty, and following consultations with the Ministry of Interior and the directors of the ONEM, we published an official position in which we stated that the incompatibility rules of the Act on legal status are not applicable to minority self-government representatives.
It is quite clear from the detailed explanation and preamble of the Act on Legal Status that, by establishing incompatibility rules, the legislator wished to ensure “the purity of democratic public life” and therefore ruled out the possibility of local government representatives filling certain civil service posts, economic positions and other appointments, and thereby using their mandates to acquire unlawful advantage.
Local municipal governments are elected bodies responsible, both politically and legally, for the complete operation of their municipalities; they have a broad scope of authority and provide obligatory public services to the whole population.
The legal status of minority self-governments differs fundamentally from that of the local municipal governments. The minority self-government is an institution safeguarding the cultural autonomy of the minority. The legal regulations do not permit minority self-governments to fulfil tasks or authorities relating to authority or public utility services.
It may therefore be stated that the application of the incompatibility rules of the Act on Legal Status to minority self-government representatives without proper reason (i.e. unconstitutionally) would restrict the passive suffrage of members of the minority community.
As a result of the elections, many minority self-governments were formed in which the representatives were close relatives. According to complainants, there is a danger of such representatives using the financial resources of minority self-governments for their own purposes rather than on fulfilling official tasks.
Under current regulations, incompatibility does not arise merely because several members of the same family – as close relatives – are elected as minority self-government representatives. The representative body must, however, represent the interests of the local minority community as a whole – a task that may become more difficult if, because of the personal composition of the self-government, its freedom from bias or impartiality is called into question. Of course, a minority self-government may be considered biased for reasons other than that its members’ being related to each other. If, however, such an opinion develops within a community about a representative body – even without reason – the body will find it more difficult to accomplish its tasks.
The election procedure lasts until the election results are declared or until any eventual recourse procedure is concluded. The complaints received, however, justify that we indicate the anomalies arising at the time of the formation of the minority self-governments.
In order to pre-empt the overlapping of positions of power linked to each other in a hierarchical, supervisory or control interrelationship, or the abusive application of partiality and personal interest, any amendment to ARNEM must contain provisions governing the incompatibility rules relating to minority self-government representatives. The adoption of the strict incompatibility rules applying to local municipal government representatives, however, would be unwarranted, because this would limit excessively the range of people that could be elected as members of minority bodies.
1.3.
The participation of minorities in the local municipal
government elections: legal issues of form and substance
Members of the minority communities are entitled to stand as independent or minority organisation candidates in local municipal government elections. In addition to fulfilling the general requirements, all they need to do is to state their desire to represent a particular minority by filling out a form. In municipalities with 10,000 or fewer inhabitants, local government representatives are elected in accordance with the rules of the small list system – which have been noted above. In districts of Budapest and in municipalities with more than 10,000 inhabitants, the mixed elections system applies; that is, some representatives win seats in individual constituencies, while others enter the representative body from a compensatory list. Special rules apply to national and ethnic minority candidates in both the small list and the mixed election system. In small list elections, preferential seats may be acquired by one candidate of each minority that has failed to achieve representation. A prerequisite for this is that is that the candidate receives more than half the number of votes that are necessary for winning a seat under the general rules. In the mixed election system, for each minority, one candidate is entitled to a preferential seat from the minority compensatory list if, failing such, the particular community would have no representatives in the representative body. This requires that the number of votes received should be greater than one-quarter of the number of votes necessary for acquiring a seat from the list.
At elections for local municipal government representatives, and if there is no minority self-government in the municipality, the minority candidate receiving the largest number of votes becomes minority spokesman – regardless of whether he is elected to the representative body.
The complaints received by our office demonstrate that many non-members of minorities register themselves as minority candidates, owing to the possibility of acquiring preferential seats. There are many known cases of candidates initially attempting to stand with the support of parties or other organisations, who then collect new nomination slips and take part in the elections as minority candidates.
Based on the events of the 1998 elections, we concluded that the minority preference provides an opportunity for the misuse of legal practice and that the regulation therefore results in an abuse of constitutional rights. The recent election has confirmed this finding, although one should mention the arguments in favour of possibly retaining the minority preference.
The Constitutional Court has determined that the institution of the minority preference does not breach the constitution or violate the principle of voter equality. In the view of the Court, the legislation enabling minority candidates to acquire preferential seats contains “positive discrimination regulations”.
The possibility of introducing a regulation aimed at eliminating or reducing inequalities of opportunity does not inevitably give rise to its constitutional necessity. However, in the knowledge of the above data, it is questionable whether, without the possibility of preferential seats, the real representation of minority communities in the municipal governments exercising local power could be assured. In 2002–2003 we carried out an inquiry into the practical application of minority rights. One of the findings was that minorities would like to have a greater say in the decision-making process affecting their community and the municipality. This demand is not met fully by their representatives – the chairperson of the minority self-government or the minority spokesman – “participating with rights of agreement” in the formal sessions of the municipal government’s representative body.
The minority preference – if it is backed by proper legal guarantees – can be a suitable means of correcting the “winner takes all” approach of “small list” elections. This system awards seats to candidates that can win the support of the majority. Groups of voters achieving just one less vote are left without any representation in the local municipal government. Thus, minority candidates are at a disadvantage from the outset, for if they rely solely on their own community they will have no chance of winning seats. In many local municipal governments, because of the power relations, a particular decision may depend on the vote of a single representative. This could explain why in some municipalities the election bodies have tried to prevent the acquiring of preferential seats.
We received complaints from several counties in which candidates objected to the fact that although they had won the necessary number of votes for obtaining preferential seats they had not become representatives. They had filled out the forms in the Mayor’s Office, including declarations in which they undertook to represent the minority in the minority self-government. They alleged that staff at the election office had failed to point out to them that they should have made a declaration of similar content with regard to the minority candidacy in the local municipal government elections, too. The notaries acknowledged that their staff had personally assisted in the filling out of forms, but in their view the complainants had not stated that they wished to stand as minority candidates in the local municipal government elections.
In the course of inquiries, we found that without the necessary declarations the candidates were not entitled to preferential seats. Owing to the conflicting statements, we were unable to determine why the forms had not been filled out. It is unlikely, however, that candidates standing in minority self-government elections would have intentionally concealed their identities in the local government elections and purposely renounced the possibility of acquiring preferential seats. There is reason to suppose that the election office staff failed to properly inform the candidates. Several acts of law and numerous decrees of the Minister of Interior govern local government elections, and the positions of the National Election Committee must also be taken into account when applying these regulations. There is such a colossal amount of legal material that one cannot expect voters or candidates to be familiar with all aspects. Thus, it is a legitimate demand on their part that they should receive proper information relating to the elections. With this in view, several legal provisions declare the legal responsibility of election offices to provide information. Election office staff members may not influence candidates with regard to whether or not they should undertake the representation of a minority in local government elections. Their duty to inform, however, includes the requirement that they remind candidates (that are also standing in the minority self-government elections) of the possibility of acquiring preferential seats, so that candidates can decide in the knowledge of this possibility. These complaints could not remedied after the election; therefore, we could merely call upon notaries to devote greater attention in future towards promoting the application of the rights of the minority self-government, because in this way at least the rights of consultation can be assured in the local municipal government. Due to the deficiencies of the legal provisions, the acquiring of seats through the minority preference currently results in the misuse of constitutional rights. There is a danger of candidates who do not belong to the minority community and who are unable to gain seats by other means due to insufficient levels of support, will misuse the minority preference. The legislator can choose one of two solutions:
1. Abrogate the possibility of minorities acquiring preferential seats in local municipal government elections. This institution is designed to promote the equality of opportunity of the minorities, and thus the application of the preferential rules cannot be considered a constitutional “civic” right. The drawback of this solution is that it denies participation in the body entitled to administer local affairs to those minorities whose communities are incapable of acquiring representation with rights of decision under the general rules.
2. Establish legal guarantees ensuring that it is only the minority community that can take advantage of the possibility of acquiring preferential seats. In this instance, there is no possibility of restricting active voting rights; thus, the only solution is to ensure that only members of the particular minority stand as minority candidates in the local municipal government elections. With this in view, there is a need to establish objective criteria that must be met by minority candidates. (We have already noted these requirements in detail in connection with the minority self-government candidates.)
The small list system was elaborated for small, politically undivided communities, where votes are cast for candidates primarily on the basis of their personal reputations rather than due to their membership of any organisation. It is the legal responsibility of the legislator and the executive bodies to consider the effect in practice of legal regulations. Based on the experiences of the four general elections held to date, one needs to examine whether or not there is a justification for removing the limit of the small list system from municipalities with ten thousand inhabitants or whether indeed the threshold should be lowered. The entry into force of the Act on the Legal Status of Representatives has given rise to a special problem affecting local municipal governments. Under the provisions of the Act, representatives may not exercise their rights until they have taken their oaths. In the course of an amendment, the text of the oath – due to an error of codification – was removed from the Local Government Act. Thus, local government representatives were compelled to recite their oaths using a text that was no longer valid. This deficiency in the law must be redressed immediately.
2.
The national minority self-governments as special entities of public law
2.1.
Characteristic features of the national (and capital
city) minority self-governments
Regarding the national and capital city minority self-governments, Section 21 of ARNEM provides that “the various minorities may establish minority self-governments, other minority self-governments… in villages, in towns and in districts of the capital city…, as well as minority self-governments at the national level. In the capital city, local minority self-governments, established in a direct manner, may be formed.” By adopting the cited provision, the legislator was in fact “exploiting” the declaration formulated in Article 68(4) of the Constitution; that is to say, it was trying to develop a positive legal framework for the formation of minority self-governments. The system has been the subject of much criticism, which can be divided up into two basic parts. One part considers it to be impermissible discrimination that the national and ethnic minorities may form self-governments in the capital city but not in the counties. According to views belonging in the other group, the minority self-governments in the capital city are superfluous, because – unlike the “normal metropolitan government” – they do not maintain any real institutions or fulfil other tasks; moreover, the headquarters of the national minority self-governments are also to be found in Budapest (apart from the Romanian National Self-government and the Slovene National Self-government). There are, of course, arguments both for and against. At any rate, in counties with large minority communities (Hajdú-Bihar and Szabolcs-Szatmár-Bereg), people question the absence of any county or at least regional representative bodies, because they have to travel to Budapest in all major administrative matters.
Without questioning the interest representation function of minority self-governments, we must point out that establishing a regional level of government would only have a point if the system could be given concrete tasks. In practice such tasks could mean – applying the analogy of the country assemblies – maintaining minority institutions such as, for instance, schools, museums and cultural facilities with catchment areas extending over multiple municipalities.
Of course, it is also worth thinking in regional terms, for it is widely known that the division of Hungary into six regions would comply with the European Union’s principles on regional organisation. Having regard for this, a political decision based on a broad range of opinion research and studies of the effects is needed in order that the system of minority self-governments should develop in line with the levels of regional government (the regions) and parallel with the upcoming restructuring of the county system. The experiences of the last two terms of government have proved, however, that the current election rules are not suitable for the establishment of national or capital-city minority self-governments. The elector voting system is completely alien to the Hungarian system of public law. Moreover, as the decision of the Supreme Court in connection with the National Roma Self-government elections of early 2003 has demonstrated, the system may be used by groups of electors with divergent interests to thwart the election of a national self-government. Furthermore, in the case of Hungary's Roma minority, the holding of the electors’ meeting is also a difficult technical task, because participation in the voting assembly must be assured for about four and a half thousand electors.
One of the main legislative tasks we face in the coming period is, therefore, to establish election rules that enable, simultaneously with the election of local minority self-governments, the election of members of regional – thus not just Budapest – and national minority self-governments.
Of course, this can only take place on the basis of the lists of nominating organisations, in which case, however, special attention should be paid to drafting guarantees preventing anomalies: the objective is to ensure that, in the hope of election success, candidates will be nominated only by organisations that may really be considered minority organisations and that have been recognised as such (that is, quasi-political organisations).
2.2.
The primary experiences of the elections for the
national minority self-governments
Soon after the elections of 1999, we reminded the legislator that an amendment to the provisions of the election law was unavoidable, because the rules governing the formation of national self-governments resulted in the infringement of constitutional rights. The events of the most recent elections have demonstrated that this conclusion was a valid one. The deficiencies of the current legal provisions are rendered particularly perceptible by the fact that, at the time of writing, it was still unclear whether or not the largest minority in Hungary would be capable of forming its national self-government. Thus, in this report, we are unable to undertake a comprehensive evaluation of the elections to the national minority self-governments currently underway. Still, some conclusions may be drawn even now: The basic rules concerning the election of the national self-governments are contained in ARNEM. The election procedure is determined by a decree of the Minister of Interior regulating essential issues (of substance and material law) that are not determined by the legislation; thus, for instance, the quorum requirements of the electors’ assembly in the capital city. The election of members of local governments – and of national minority self-governments, under the relevant provisions of ARNEM – must be regulated in an act of law; thus the level of regulation violates the legal stipulations of the legislator. One should also point out that Section 153(1) of Decree on election procedure was listed among the authorising provisions of the act, whereas in fact the provision in question did not authorise regulation by way of a ministerial decree. The regulation of the national minority self-governments does not fulfil the constitutional requirement that legal norms should be clear and unambiguous, as well as reliable and predictable in terms of their operation, for those to whom they are addressed. This is demonstrated by the dispute of legal interpretation which arose after the Supreme Court cancelled – due to the absence of a quorum – the election result of the electors’ assembly of 11 January 2003 and ordered the re-holding of the national Roma self-government election. In the view of some people, the Supreme Court was inconsistent, because in 1995 it had declared a national Roma self-government election held under similar circumstances to be valid. The judgement of the Supreme Court has binding force, so there is no possibility of our taking a position on the issue of the quorum of the Roma electors’ assembly. It may be concluded, however, that the legal provisions governing the election of the national self-governments give rise to contradictory legal interpretations.
The minority electors are the guarantee of the relationship between the national self-governments and the minorities that they represent. This regulation will only be constitutional if the various minority communities – through their chosen electors – can determine themselves the personal composition of the general assembly exercising the self-government’s tasks and authorities. At present, this requirement is not guaranteed, because the electors are not elected exclusively by the minorities from among their own ranks.
Owing to the deficiencies of the regulations governing local minority self-government elections and local municipal government elections, the system of electors fails to guarantee the application of the right of the minorities to establish national self-governments.
The right of eligibility is a fundamental right to which all Hungarian citizens are entitled and which can only be restricted for constitutional purposes and to the extent necessary. This requirement is not met at the time of the election of the national self-governments, because anyone who is unable to be present for whatever reason – even on health grounds – at the electors’ assembly cannot exercise his passive suffrage rights. This legal restriction gives rise to a violation of constitutional rights. Members of the national minority self-governments are elected according to the rules of the small list system and thus groups of electors whose candidates fail to achieve the fifty-percent of votes necessary for the acquiring of seats receive no representation in the assembly. Owing to the deficiencies of the legal regulations, there is no guarantee that the various groups of electors receive representation in the national self-governments in accordance with their real support. The disproportionate nature of the election results is heightened by the fact that each elector has one vote, irrespective of the size of the minority group that he represents. Since in villages with fewer than 1300 inhabitants minority self-governments may only be formed with just three members, it can happen that a more populous community living in such a village will be represented at the assembly by fewer electors than a smaller minority community living in a more populous municipality. Given the lack of proportional representation, a group of electors in a minority may not necessarily be interested in participating in the formation of the national self-government. The election rules enable an appraisal to be made – even at the time of the election of the chairperson of the meeting or when compiling the list of candidates – of which organisations’ candidates have a real chance of becoming members of the general assembly. Electors belonging to the “opposing camp” can obstruct the formation of the self-government by staying away. Based on the above conclusions, it may be stated that the current regulations are not suitable for the election of members of the national minority self-governments. The legislator may choose between several solutions that guarantee the right of the minorities to self-governance:
1. The members of the national minority self-governments would be elected by voters appearing on registers kept in each municipality and for each minority on the basis of their votes cast directly for the lists. Candidates would be persons who were also eligible for election to the local minority self-governments. Lists could be compiled by organisations registered at court as minority organisations. The division of seats would have to take place in a proportionate manner. These regulations would also be applicable to the election of any eventual regional self-governments. The advantage of this election system would be that it would establish a direct relationship between the national self-governments and the communities that they represent. It would become easier to evaluate the levels of support enjoyed by the various bodies. The election process would become simpler and probably cheaper, because people could vote for members of both the local and the national minority self-governments on one occasion. The “weak point” of these regulations is the possible appearance of organisations compiling lists that are not backed up by real minority communities. Under the laws in force, a social organisation may be established by just ten founding members, and such organisations may freely undertake, in their charters, to represent minorities. In order to overcome anomalies, it would be necessary for minority organisations to prove that they had been active over a certain period – perhaps several years.
There are also practical reasons for the introduction of the list and the exclusion of individual candidates. The construction of a system of individual constituencies would be unjustified and impractical, given that the minorities in Hungary do not live in compact areas but are dispersed around the country. It would be necessary, therefore, that the whole of the country should qualify as one election constituency. This would inevitably enhance the role of campaigning, of competition between programmes, because candidates would have to fight for the votes of electors who, due to the geographical distances, would be personally acquainted with just some of the candidates. In this system, individual candidates would set out with an overwhelming disadvantage, because they would have almost no chance of making their ideas and objectives known to a broad range of voters.
2. Seats on the national self-government would be divided up proportionately (for example, on the basis of the number of representatives, bodies, votes cast, or people appearing in the minority registers) between the counties and regions. The election of members of the general assembly would be held separately in each county. Members of the local minority self-governments, minority representatives of local self-governments, and minority spokesmen would be entitled to the active and passive suffrage.
Since the acquirable seats would be divided proportionately, this would ensure that all the communities living in the various areas of the country would be represented in the general assembly. In theory this would help to overcome the tensions that arise due to the fact that some counties do not consider their representation in the national self-governments to be satisfactory.
3.
A promise unkept: the autonomy of the minority self-governments
3.1.
An inquiry into the application of minority rights as
reflected in self-governance
In recent year the Parliamentary Commissioner for National and Ethnic Minority Rights has paid particular and constant attention to the minority self-governments, to the bodies authorised to exercise the minority communities’ civic rights of public law. In 2002, in addition to examining complaints received in connection with the activities and operational difficulties of the minority self-governments, we also began a comprehensive inquiry into the application of minority rights – based on the working experiences of the minority self-governments.
The inquiry was made necessary and topical by the minority self-government elections of 2002 and by our goal of revealing the extent to which the minority self-governments – which first came into being eight years ago – are capable of applying the interests of the minority communities, and whether they are able to exercise the rights derived from minority self-governance with appropriate efficiency. Simultaneously with the formation of the new local and national minority self-governments, we should have liked to give an objective evaluation of the main problems and deficiencies of the operation of the minority self-governments. Thus, in our inquiry based on sociological research, we sought to analyse the extent to which the minority self-governments, formed for the purpose of establishing the cultural autonomy of the minorities, are able to promote – through their operations and activities – the application of the minority rights contained in ARNEM. It is our conviction that the disclosure of the difficulties and conflicts may help to promote recognition of the deficiencies and contradictions of current regulations. By making comments and suggestions, we sought to contribute to the resolution of problems that have arisen as well as the more efficient operation of the minority self-governments.
The inquiry, which was administered with the participation of researchers of the Regional Development Research Department of the Regional Research Centre of the Hungarian Academy of Sciences (hereinafter Regional Development Research Department), comprised three stages.
The first and most important part of the inquiry was a questionnaire survey. Financial limitations and time restraints did not allow us to involve all of the country’s working minority self-governments in the survey. Thus we chose the counties of Baranya and Szabolcs-Szatmár-Bereg as our fields of study. Baranya was chosen because of the diversity of its minorities both in the past and in the present, and Szabolcs-Szatmár-Bereg because the Roma minority formed all but six of the minority self-governments operating in the county. The choice of Baranya and of Szabolcs-Szatmár-Bereg was motivated by our belief that, given the minority composition of the two counties, the survey would be able to reveal the main problem areas and characteristic trends associated with the operation of the minority self-governments in Hungary. The questionnaire asked questions relating to the realisation of the rights contained in ARNEM, the problems of their day-to-day application, and to co-operation between the minority self-governments and local municipal governments. In addition to the minority self-governments, the questionnaire was also delivered to local municipal governments in those municipalities in which one or more minority self-governments were also functioning.
This enabled us to become acquainted – from both perspectives – with the achievements, failures and problems of the operation of the minority self-governments.
Overall, 38% of the minority self-governments and 59% of the local municipal governments that were approached, filled out and returned the questionnaire. The data of the returned questionnaires comprised the basis of the research findings.
In the second part of the inquiry, in the first half of June, the Parliamentary Commissioner for National and Ethnic Minority Rights organised a forum in the two county centres of Pécs and Nyíregyháza. Invitations to the forum were sent to the chairpersons of the minority self-governments, mayors, Members of Parliament in the county, as well as the heads of the offices of public administration and the officials responsible for the minorities.
The forum provided minority and other local politicians in the county with an opportunity to become familiar with the research and to make their comments, suggestions and complaints.
In July 2002, in the third part of the inquiry, staff members of the Regional Development Research Department undertook structured interviews with minority self-government chairpersons, mayors, notaries, and officials responsible for the minorities in Baranya County and in Szabolcs-Szatmár-Bereg County. In Baranya County fifty-one interviews were carried out in twenty municipalities, while in Szabolcs-Szatmár-Bereg County forty-nine interviews were carried out in twenty-two municipalities. The report was based on the closing study of the Regional Development Research Department.
The report presents, in ten chapters, the findings of the research. The summary comments and proposals appended to each part of the report could assist preparations for the amendment of ARNEM and associated legal provisions. For this reason, we sent the report to the Minister heading the Prime Minister’s Office, as the person with the main responsibility for government tasks in connection with the national and ethnic minorities.
3.2.
Problems concerning the conditions of operation of the minority
self-governments, and proposals for their solution
As in previous years, we must also present matters linked with the operation of the minority self-governments and, in a narrower sense, with ensuring the conditions necessary for their functioning. In addition to complaints submitted in writing, there was also an increase in the number of people requesting information or guidance in person or by telephone. On the one hand, this may be explained by the fact that the newly formed minority self-governments, as well as – in many cases – the notaries who are called upon to assist the work of minority self-governments, had insufficient knowledge and information. On the other hand, however, this problem also arose in connection with ensuring the conditions of operation necessary for the work of minority self-governments that had already been functioning in the previous term. First and foremost, let us examine the background legal regulations governing these issues.
Section 28 of ARNEM declares that “the Mayor’s Office is bound – in a way defined by the organisational and operational rules – to assist the work of the minority local self-governments”.
Government Decree No. 20/1995. (III. 3.) on the various issues of the budget, economic management, and property of the minority self-governments, determined for the first time the obligations of mayors’ offices. It declared that “mayors’ offices shall, in accordance with Section 28 of ARNEM – on request – provide the conditions for the operation of the local minority self-government bodies, and shall perform the tasks associated with this, in particular, therefore, the use of premises in line with the rules of operation of the minority self-government body, and the provision of postal, delivery, typewriting and photocopying tasks, including the bearing of costs associated with these tasks.”
This last provision was adopted without any change of content – and with the abrogation of the original text – by Section 57(6) of Government Decree No. 217/1998. (XII. 31.) on budget procedures (Decree on budget procedures), which, interpreting jointly Section 28 of ARNEM determines the tasks which local municipal governments must currently fulfil in connection with the operation of minority self-governments. The legal provisions make it quite clear that it is the local municipal government that must provide for the material and technical needs. A problem of legal interpretation faced by the leaders of municipal governments is, however, determining the extent to which they are bound to provide the conditions necessary for the operation of minority self-governments. Let us examine this issue in the light of complaints received by the Parliamentary Commissioner for National and Ethnic Minority Rights.
The notary public of a local municipal government appealed to the Parliamentary Commissioner requesting an answer to the question of what premises must be provided by the local municipal government to the minority self-government and from what point in time?
Section 57(6) of the Decree on budget procedures stipulates the provision of the use of premises in line with the rules of operation of the minority self-government body. It may thus be clearly determined that this obligation is borne by the local municipal government from the founding session of the minority self-government.
After the elections, there was a perceptible increase in the number of personal inquiries in which chairmen and representatives of minority self-governments requested the position of the Parliamentary Commissioner concerning the premises that they could demand from local self-governments.
There are no precise rules governing the size and number of rooms of the premises (or determining the extent of the need). Thus it is no easy task to decide, in a given municipality, what premises should be made available to a particular minority self-government. In many cases, the local governments of small municipalities and notary districts are themselves operating in confined circumstances. For this reason, in specific cases, we advise that, where possible, local municipal governments should at least make available – for the holding of sessions of the minority self-government – the premises in which they themselves hold their meetings. However, for the purpose of storing its documents and equipment, a minority self-government will also need, at the very least, its own lockable filing cabinet.
A minority self-government may legitimately demand the provision of a separate office, where it can hold its meetings and otherwise receive its clients. Such demands will be acceptable in larger municipalities with more spacious local government offices. Still, the shared use of premises has already given rise to several disputes. Nevertheless, in the absence of any other possibility, it is acceptable – where several local minority self-governments are operating and it is impossible to provide separate premises to each one of them – for minority self-governments to mutually agree on sharing premises. Where a local municipal government has no free premises at its disposal, it could possibly rent premises for the minority self-government.
Minority self-governments may request local municipal governments to provide, on occasion, premises that are suitable for the holding of larger events (assembly halls, cultural centres etc.). Postal, delivery, typewriting and photocopying tasks may be provided for in two ways:
a) the local municipal government fulfils these auxiliary tasks (type-writing, photocopying etc.) through its own administration and using its own infrastructure, in line with the requests of the minority self-government,
b) the minority self-government performs these tasks itself, in which case the local municipal government shall provide it with the technical equipment (typewriter, photocopier, computer etc.).
A recurrent problem is the use of telephones and fax machines. In this regard, a generally acceptable solution is for the local municipal government to provide a telephone line in the offices of the minority self-government, the costs of which are paid by the minority self-government using the state support that it receives for its operations. Where the resources at the disposal of the minority self-government do not enable this, the local municipal government shall also ensure, within the framework of the provision of postal tasks, the use of a fax machine in matters linked with the operation of the minority self-government. We must also deal separately with the use of computers and the Internet. It cannot be disputed that this is an extremely important means of maintaining contact with the kin state and of fulfilling tasks linked with the application of the interests of the minorities represented by the minority self-governments. Today there are many websites providing access to special items of information – legal regulations collected together thematically, informative material, tenders etc. – that offer assistance to minority self-governments in the successful realisation of individual projects. It requires no further explanation that if a local municipal government has access to the Internet it should permit members of the minority self-government to use it for the purpose of their work.
It is widely known that the state provides resources for the operating expenses of minority self-governments, but that they do not have their own offices. Thus, there is a need, in addition to the tasks that are associated with their economic management and are obligatory on the basis of an agreement, for each body to provide for the tasks associated with their own order of business. Since minority self-governments are incapable of maintaining their own offices, the obvious and – at present – only possible solution is that local government offices or mayor’s offices should support them in this task.
Local governments are not bound by law to sign co-operative agreements on the guaranteeing of the conditions of operation – premises, office equipment, stationary, management tasks. For this reason, some of the minority self-governments may become rather vulnerable. For if a local municipal government or its leadership refuses to meet the requests of a minority self-government, in the long term it can render the operation of the minority self-government impossible.
This is well demonstrated by a complaint whose roots go back to the previous election term.
The basic disagreement between the local municipal government and the Roma minority self-government concerned the use of premises and the issue of management. Thus, through mediation, we attempted to bring the two sides closer together. As a result of a long process of negotiation, the leaders of the municipal government pledged to allow the minority self-government to hold its meetings – similarly to the representative assembly of the local municipal government – in the mayor’s office or, if necessary, in the hall of the cultural centre. They also agreed to provide for the conditions necessary for the office administration tasks of the minority self-government (type-writing, use of telephone), as well as a lockable filing cabinet for the storage of the minority self-government’s documents. Last year, however, the chairperson of the minority self-government indicated in a further complaint that the agreement established as a result of the discussions had broken down and that the provision of the minority self-government’s conditions of operation continued to be a problem, and that the mayor’s office was still unwilling to co-operate with them.
The specific manner in which a local municipal government assists the work of a minority self-government and how it ensures the conditions that have been listed, must be laid down in its organisational and operational rules – taking into consideration the local circumstances. These rules must include a list of all the tasks that the Mayor’s Office must perform in connection with the operation of the minority self-government body. This decree, however, will not contain – and cannot contain – detailed rules. Therefore, these should be listed in the co-operative agreement, which should be supplemented with these details.
In the course of an inquiry into the concrete issue, we concluded that the – legally obligatory – co-operative agreement relating to the annual budget (and annual closing) and economic management had not been established between the local municipal government and the Roma minority self-government. Therefore, we informed the notary public that he should take the measures necessary for overcoming this default and that, as part of this endeavour, he should establish contact with the chairperson of the minority self-government, with a view to conciliation and prior to compiling a draft agreement.
Given that the minority self-government’s use of premises had not been resolved over the years and that other conditions of its operation were causing problems – bearing in mind that there had been a failure to develop and put down in writing the rules of co-operation, we concluded that the resultant state of affairs jeopardised the right of the minority self-government to self-governance. Therefore, we informed the local municipal government that it should find out exactly what conditions were being requested by the minority self-government from the mayor’s office. Following conciliation with the minority self-government, it should establish in its organisational and operational rules the tasks that it would perform for the minority self-government. Then, based on their approval, the two parties should supplement the co-operative agreement with the associated detailed regulations and procedures.
Thus, with luck, the notary public heading the municipal government offices (and obliged to provide the conditions of operation) and a representative of the minority self-government will be able to clarify through a process of conciliation – even perhaps by requesting the position of another body – the various possibilities pertaining to the use of premises and the fulfilment of the other conditions of operation. The problems relating to the provision of the conditions of operation – and, in particular, of premises – may become the source of permanent tension.
By way of summary, we conclude as follows:
• At present, the legal provisions offer no clear indication of the quality and number of premises that must be provided by the local municipal governments to the minority self-governments.
• There are also doubts concerning the submission of use and of ownership.41
• If an agreement on the conditions of operation fails to be established between the two organisations or if the local municipal government fails to comply to any such agreement, in a public legal sense, the minority self-government has no “compelling” instruments available to it and thus its operations may easily become impossible to sustain.
• ARNEM and/or the Local Government Act need to be amended in such a manner that a) the signing of a co-operative agreement on the conditions of operation should be compulsory, b) the legal provisions should determine the minimum requirements that must be provided to each minority self-government, and that minority self-governments at city and county-borough level, as well as those of the more sizeable minorities – for example, the Roma, Germans, Croatians and Slovaks – should be provided with the infrastructure needed for the continuous operation of offices, c) the principle is applied that municipal governments should receive central budgetary support in proportion to the minority tasks that they perform.
3.3.
Participation of the minority self-governments in local
decision-making
In the course of our work, we often were confronted with the problem that the local municipal government was failing to guarantee the consultation rights of the minority self-government – or was simply ignoring its disapproval (veto). Thus, again this year, we must devote a subchapter to this theme.
Local minority self-governments may exercise their rights and authorities in close co-operation with the local municipal governments. Minority self-governments may exercise their administrative rights primarily through the decision-making powers that are exercised jointly with state or self-government bodies. Such rights have two forms: the right of agreement and the right of opinion. Thus minority self-governments are able to influence the decisions of others through the right of opinion and the right of agreement as stipulated by law. Of course, minority self-governments are clearly entitled to form opinions on any issue whatsoever – many issues are identified by Act LXXIX of 1993 on Public Education (hereinafter Public Education Act) and by ARNEM. But the bodies concerned will be under no obligation to take such opinions into consideration. Therefore, the only remaining means by which minority self-governments can really influence decisions is through the right of agreement.
Section 29(1) of ARNEM – covering the various areas of cultural autonomy – guarantees that local self-government decrees on issues concerning local state education, local mass media, the cultivating of local traditions, culture and the collective use of language, which affect the minority population as such, shall only be passed by the representative body in agreement with the local minority self-government representing the population concerned.
The right of agreement is a guarantee element; a minority self-government will be acting quite legitimately if it only gives its approval where the interests of the local minority community are not infringed.
We can divide into two large groups the discussion of the various elements of the right of agreement. In the first group, we present issues concerning public education, while in the second we present aspects of the right of agreement as it may be exercised in the other areas of cultural autonomy.
Education has primary importance amongst minority rights. It is a well known fact that the family’s role in the process of transmitting the mother tongue has declined in recent years and that, sadly, the fostering of minority culture and language tuition have fundamentally become tasks of minority education. This year we have received once again several complaints concerning the appointment of heads of institutions of state education (a school headteacher and the head of a nursery). Clearly, the matter of who should run such institutions is of grave concern to both local municipal governments and minority self-governments. In the following we examine a typical complaint:
Since the local municipal government was unable to agree with the minority self-government on who should be appointed to head the school, in the second round of the appointment process it appointed for a one-year interim term a civil servant for whom it had not requested the approval of the minority self-government. And it did all this, even though the notary public acknowledged that primary schools qualify as institutions of minority education.
Under Section 102(10) of the Public Education Act, if the maintainer [of a school] is the local municipal government, then, where such a school is an institution of minority education, the local municipal government must obtain the approval of the minority self-government before the appointment or dismissal of a headteacher. Thus we concluded that the resolution ignoring the right of agreement, violated the law. As it turned out, the local municipal government had based its decision on an erroneous interpretation of Section 29(2) of ARNEM and of Government Decree No. 138/1992. (X. 8.) on the implementation in institutions of public education of Act XXXIII of 1992 on Public Employees. The local self-government, based on a word-for-word interpretation of Section 5(1) of the Government Decree and Section 29 of ARNEM, had arrived at the conclusion that if the tasks of the headteacher were fulfilled by a “interim head of the institution”, this would not amount to the appointment of a higher-ranking head, because it does not appear on the list in the cited provision. Thus, where an interim appointment was made, there was no need to apply the compulsory approval mechanism during the appointment procedure, and therefore the right of agreement of the minority self-government could be disregarded.
In our view, even during the “second round” of a selection process, the approval of the minority self-government must be sought. Indeed, any other interpretation of the law would enable local municipal governments to automatically disregard the right of agreement. For, citing the disapproval of the minority self-government concerned, they could repeat each year the appointment of an interim head of the institution, thereby circumventing the legal guarantee and negating its content.
The grammatical interpretation cited above would enable the conclusion to be drawn that whereas the interim head of the institution would not qualify as a higher-ranking head, many of his subordinates, who are subject to his rights as employer, would do so (for instance, whereas the deputy would qualify, the interim head – the deputy’s superior – would not).
We were unable to remedy retrospectively the legal violation – and the complaint itself did not contain such a request – and thus we did not initiate proceedings. The parties did, however, request our advice with a view to avoiding the development of such situations in the future.
The itemised provisions do not contain detailed rules on the exercising of the right of agreement; for instance, there is no established conciliation procedure in the event of disagreement between the parties. In the absence of such, we made the following proposals:
• the voluntary establishment of a conciliation committee to make known the positions;
• the holding of a joint session of both bodies could help to give rise to a compromise acceptable to both parties, as could also direct negotiations between the mayor and the chairperson of the minority self-government;
• the formation of a minority committee, an institution that could serve to make known the positions and arguments and to establish a consensus.
Of course, the adoption of a proposal aimed at creating a framework for the conciliation process would be no more than a one-off solution. It is the law that will establish real legal security.
In the specific matter, we had no choice but to conclude that the county office of public administration committed a grave error when it failed to observe that an appointment decision had been taken without paying attention to the right of agreement of the minority self-government concerned.
The chairperson of a local minority self-government requested our position on the construction of a memorial in the village in remembrance of a plebiscite held in the municipality on 14 December 1921, the so-called Day of Loyalty.
The events of the matter may be summarised as follows. The Government of Hungary, at a session held in Sopron on the occasion of the eightieth anniversary of the plebiscite, adopted Government Decree No. 244/2001. (XII. 14.) in which it proclaimed the 14th December the Day of Loyalty and appealed to the bodies of the state, local governments, churches, schools and civil organisations, to remember, in a proper manner, the stand taken by the people of Sopron. The decree even stipulated that the Government would donate a fountain to Sopron and provide for the construction of appropriate memorials in the communities that had taken part in the plebiscite. Within a month the German minority self-government of one of the municipalities had resolved that it would “not support the construction of the planned memorial to the plebiscite”.
Several months later the representative body dealt with the issue on two occasions, but still no decision was taken. Finally, at a mid-summer meeting of the representative body last year, the self-government rejected the mayor’s proposal concerning the construction of a memorial. Despite this, the mayor – exercising his right under Section 35(3) of the Local Government Act – convened an extraordinary meeting of the representative body with a view to discussing the matter once again, at which a quorum was constituted only after a considerable wait. At the meeting, the “stump” representative body decided on the basis of five votes in favour and one abstention that an artist should be commissioned to construct the memorial to the eightieth anniversary of the plebiscite.
We were unable to clarify the extent to which the mayor and the notary public had been influenced by the fact that a decision taken in the form of a resolution could be used to evade the minority self-government’s rights of agreement as guaranteed by Sections 29(1) and 38(3) of ARNEM. In our opinion, to decide upon this matter in the form of a resolution constituted an infringement of the law. In our judgement the construction of the memorial should have been decided upon in a decree. One of the reasons is that, in this case, the issue is not an individual act but rather provisions affecting and governing local living conditions. The other reason is that much of the population of the village was greatly concerned with the issue and therefore social consensus in the municipality was of particular significance.
In our view, the subject-matter of the decree – the construction of a memorial – inevitably affected the local German minority community and the cultivating of its traditions, for this is remembrance of a historical event that fundamentally affected the subsequent destiny of the German community. For this reason, it was not possible to come to a legitimate decision without considering the position of the minority.
In addition to the above, it could also be determined that the local municipal government failed to provide the minority self-government with the possibility of exercising the right of agreement or even the right of opinion, because one can only form an opinion and decide on issues if one knows the concrete script of the decision maker. As the minutes of the extraordinary meeting of the representative body demonstrate, the notary public of the municipality informed the local government representatives that the municipality was bound to execute the government decree on the Day of Loyalty, because under Section 1(2) of Act XI of 1987 on Legislation (hereinafter: Legislation Act), an rule of law of lower order may not be at variance with rule of law of higher order. It seems, however, that the notary public disregarded Section 1(5) of the Local Government Act, as well as point b) of Section 6(1), according to which the compulsory tasks and functions of municipal governments can only be determined in an act of law. Under Section 7 of the Legislation Act, the Government may issue a decree on the basis of an authorisation contained in an act of law. A government decree may only regulate the execution of self-government tasks established in an act of law. Thus, it may be concluded that the above-mentioned government decree did not place – and could not have placed – any obligations on the local municipal government. (We note in parenthesis that the State Secretary for Public Administration of the Prime Minister’s Office acknowledged that the cited government decree arose outside the normal conciliatory process of public administration. This issue, however, also affects the right of opinion of the national [countrywide] minority self-governments, which will be dealt with in a separate chapter.) We concluded that the representative body acted illegally when it decided, in the form of a resolution rather than a decree, on the construction of a memorial on the eightieth anniversary of the plebiscite. Moreover, it failed to ask for the approval of the German minority self-government in the field of fostering local traditions and culture in this municipality with a historical German community. We therefore requested the revoking of the resolution; a renewed discussion on the construction of the memorial and its regulation in the form of a decree; the obtaining of the approval of the German minority self-government prior to the establishment of the decree; and the suspension of construction work on the memorial until the decision of the representative body. Following the resolution of the representative body, the mayor took rapid action. The memorial was completed within two months, and thus our initiative became untimely. We reminded the local municipal government that in future it should seek accord with the local German minority self-government.
This case also well demonstrates that use of the word “decree” in Sections 29(1) and 38(3) of ARNEM – rather than the word “decision” used elsewhere – is imprecise, because it can easily led to the outwitting of the minority self-government’s right of agreement.
III.
The administration of the right to social security as reflected in the complaints submitted to our office
1.
Legal guarantees of social rights
The social rights guaranteed by the state form part of the general human rights. Social rights are closely linked with the fundamental civil and political rights and they are indivisible. Nevertheless, the extent to which social rights and associated provisions are guaranteed in any particular state depends significantly on the economic indicators and level of development of the country. The equality – of status and of value – of the various “generations” of human rights is guaranteed neither in international law nor in the classical welfare states – including, of course, Hungary.
The obligations of the Hungarian state are determined rather broadly by Article 17 of the Constitution, which states that the Republic of Hungary shall provide for the needy through extensive welfare measures. This provision is narrowed by Section 70/E(1) of the Constitution, when it lists the situations in life – thus, old age, illness, disablement, widowhood, orphanhood, and unemployment owing to circumstance beyond a person’s control – in which citizens of the Republic of Hungary are entitled to provisions on a statutory basis. The list, however, is not taxative, for additional situations of need may be derived from other provisions of the Constitution, and these may also provide grounds for entitlement to social provision.
The Constitution makes it a requirement of the state to establish and operate a system of social provision that, together with other systems of provision, guarantees the level of provision necessary for the subsistence of citizens.
The statutory forms of social support guaranteed by the state to citizens are systemised by Act III of 1993 on Social Administration and Social Provisions (hereinafter Social Act). This is supplemented by the Local Government Act, which lists the tasks of basic social provision that must be fulfilled by local municipal governments. In order to fulfil such tasks, over the years local governments have established decrees. In such decrees they have regulated the conditions that ensure provision for the needy in the light of local circumstances. The resources necessary for the tasks are primarily provided by the state budget – in the form of normative support. Nevertheless, temporary assistance reducing the subsistence problems that most affect the population, still belongs exclusively within the scope of the local government budgets. The situation is the same with regard to home maintenance support and interest-free loans and grants for homebuilders or renovators. Roma families are in a particularly difficult situation in municipalities where the local governments lack funds and are therefore only capable of guaranteeing the statutory benefits provided by the state.
In earlier years, petitions were received by the Parliamentary Commissioner in which Roma families complained about the discriminative implementation of acts of law and municipal government decrees that were otherwise favourable and offered them social security. Due to our inquiries and initiatives, the situation has now changed. People making complaints in 2002 would still like to achieve an improvement in their living circumstances, but they do not merely demand larger amounts of assistance: they now expect work and suitable housing from the municipal governments.
Almost one-fifth of matters arising during the reporting period concerned social problems. These may be divided into three subject areas:
• social assistance;
• job opportunities, matters relating to public works;
• accommodation and housing.
2.
Problems relating to social assistance
The Constitutional Court has ruled in Decision No. 43/1995. (VI. 30.) AB that, depending on the type of need, social provisions may differ according to their nature, but they must be appropriate for ensuring the application of the right of citizens to social provision.
A new trend in 2002 has been that complainants objecting to the absence of some form of assistance, which has placed them temporarily in a difficult situation, have turned to the Parliamentary Commissioner with their petitions containing requests for assistance.
In the absence of statutory powers, we are, of course, unable to provide financial assistance, but we do call complainants’ problems to the attention of the municipal governments. At such times, it generally transpires that the family does receive various forms of support, but that the amount paid out on each occasion has not changed for years and has become so insignificant (there are cases of just 2000 Forints) that it does not meet the objective and does not represent real assistance for the family.
Social support at local level is ridden with conflicts because Roma families cannot accept the situation that has arisen due to insufficient funding. Their living circumstances have deteriorated over the years and they find that they cannot rely on anyone for effective support. Even the recipients of regular social assistance or disablement pensions are incapable of providing for their families. Thus, in the absence of considerable local government support, tensions between the local Roma population and the municipal governments have become almost a permanent feature. And yet a properly developed and functioning social policy would be of great significance, as well as a guarantee not just of the preservation of social integration but also of its consolidation.
Most local governments in smaller municipalities function under difficult financial circumstances and often suffer from a lack of funds; they are incapable of fulfilling the expectations of an increasingly impoverished and desperate Roma population. Within the confines of their budgets, they try to support the needy by offering assistance over and above the statutory benefits.
Sadly, we also encountered a case in which a municipal government had not only illegally refused to grant the requested support – probably due to the applicant’s Roma descent – but had not even accepted the application, thereby violating the rules of procedure, but had merely issued an oral rejection.
A complainant living in a small town in Pest County complained that a response had not been made to his application either before or after the statutory deadline, that he had repeatedly been misled, and that, in particular, the self-government would not acknowledge his desperately difficult situation: as a disabled pensioner he was bringing up two young children and had merely asked that school meals should be approved for his children. On submission of the complaint, the school year was well underway, but the municipal government had done nothing to assist the family.
With this procedure the municipal government disregarded the provisions of Act XXXI of 1997 on the Protection of Children and the Administration of Guardianship, which require local municipal governments to provide assistance – through provisions and measures – towards the application of the rights and interests of children. By violating the procedural rules, the local government failed even to guarantee the application of the right of the complainant to legal security.
Based on the findings of the inquiry, we requested the local municipal government to make amends for the legal violation and to cease the improper procedural practice.
The representative body did not accept the request and thus we contacted the County Prosecutor’s Office of Pest County, requesting that the exercise of the law be placed on a legal footing and that, under the scope of its functions of legal supervision, the Office should take the measures necessary with a view to preventing any future violations of the law.
In our experience, the above case is not typical; local governments generally attempt to provide school meals to needy children, even if by doing so they are forced to reduce the amounts of other forms of support.
3.
Creating job opportunities, as an important element of social provision
For the Roma population the solution would not be to raise the amounts of assistance, but to provide families with regular sources of income and to create permanent job opportunities. This is a problem in the larger towns, but in the smaller municipalities it is also an unmanageable problem, because they are unable to create jobs on their own. In such villages the only solution is to organise public works. The conditions of such are governed by law; participation is subject to an undertaking to co-operate regularly with the local labour centre. This is the reason why municipal governments cannot employ everyone in programmes of public works and explains the petitions received by us in which people complain about the lack of public works or their insufficient nature. A local government can only employ the number of people for whom it receives an allocation from the labour centre, but complainants merely see that job opportunities are few. Since they do not know how the system works, they find themselves in conflict with the local municipal government, which is unable to employ the numbers of people requiring work and incapable of meeting their needs. Although our inquiries, in the wake of the petitions, demonstrated that Roma inhabitants constitute a decisive majority of people employed on public works, nevertheless they feel that both the municipal governments and the labour centres are treating them in a discriminative manner.
In order to alleviate dissatisfaction among the Roma population, several local governments involve the minority self-governments in the division of public works and in the organisation of vocational courses. Indeed, we even know of a case where the running of the whole systems has been assigned to a Roma inhabitant who enjoys wide respect in the community and whose personal authority is capable of smoothing out the controversies arising in the course of the division of tasks. Despite all its problems, the “public works” programme is of considerable assistance to people who would otherwise have no job opportunities and would have to provide for their families out of social support. The complaints submitted to us show that most people amongst the Roma population want to work; hopefully, they shall have the opportunity to do so before long.
4.
Problems of shelter and housing
About fifty percent of matters relating to social provision that were submitted to us concern, in some form, shelter and housing.
The provision of housing would be a fundamental element of social security and social provision. In 1997 the Parliamentary Commissioner for National and Ethnic Minority Rights as well as the Parliamentary Commissioner for Civil Rights appealed to the Constitutional Court. In our petition we asked the Court to determine whether the right to shelter (housing) comprised a part of the right to social security, that is whether or not Hungarian citizens have a right to housing guaranteed by the Constitution. In Decision No. 42/2000. (XI. 8.) AB the Constitutional Court clearly pronounced that citizens’ right to shelter (housing) cannot be derived from the right to social security.
Nevertheless, the ruling also stated that, with a view to safeguarding the right to human life and dignity defined as the minimum basic requirement of subsistence under Article 70/E.(1) of the Constitution, the state must provide for the conditions of human existence. Thus the state’s obligation to make provision in situations of danger that directly threaten human life extends to the provision of accommodation. The Roma families that approached us in this matter considered the circumstances in which they were compelled to live were crampt or unfit for human existence. The media and the statements of politicians mention housing programmes, action by the state, credit opportunities, and assistance from local governments; in their experience, however, their housing problems have remained unresolved for years (or even decades), the banks refuse even to discuss credit opportunities with them, and local governments at best make pledges, but in practice nothing happens at all that would allow them to live in more humane circumstances. Roma families expect the problem to be solved primarily by the local (municipal) self-governments, most of which have neither the funds nor an appropriate strategy. Given the lack of resources, they treat merely the symptoms; for example, they place a family under threat in temporary accommodation without proper facilities that will soon become life-threatening, and they do not understand why they are further criticised, because the dissatisfaction is undiminished.
Some of the petitioners complained that they had requested rented accommodation from municipal government years ago, but had not received even a pledge from those responsible. Our inquiries demonstrate that such families are in an almost hopeless situation. Municipal governments are hardly building any flats for rent. And if they do build such flats, then they rent most of them out for fixed periods to families that undertake the monthly precautionary savings payments, as a result of which, in five years time, they can then solve their housing problems themselves, by taking out preferential home loans. Unemployed people and those living off social benefits – thus most Roma families – cannot count on rented accommodation requiring precautionary savings payments.
Housing allocable on a social basis is insufficient even in such places, and sometimes there are hundreds of eligible applicants; thus, it counts almost as a miracle if someone manages to obtain such a flat.
The opportunities of Roma families are further diminished by the practice whereby if there are two families living in identical circumstances – with the same number of points in the assessment of their applications – the flat will be awarded to the family whose financial circumstances guarantee regular payment of rent and public utility bills. This practice offers unemployed Roma families living off benefits with no chance at all of acquiring their own homes.
The situation is the same when applications for rented flats are being assessed. In connection with housing, another problem mentioned in the petitions is the increase in the costs of maintaining flats. The rent paid by complainants for their flats is generally low, due to the lack of facilities. But in addition to rent charges, there are also other public utility costs that must be paid, which together place a considerable burden on families. Families with no regular income, living off benefits well below the poverty line, and occasionally with several children to bring up, may accumulate arrears amounting to several hundred thousand Forints. And if the service-provider or the municipal government takes them to court, their eviction may become unavoidable.
Temporary accommodation, however, is generally available only in the larger towns (but not everywhere) and although people are not put out on to the streets – especially if they have children – national scandals may arise because of the accommodation provided to families. A good example of this is the case of the Roma from Paks, who were placed in acceptable circumstances only after an inquiry by the Parliamentary Commissioner.
The complaints made in the petitions, as well as knowledge of the possibilities, make it clear that a solution to the housing problems of the Roma must be found at the level of the state. Acting on their own, local governments will not be able to deal with this problem. In the past year, the repayment of OTP loans for homes built earlier on, arose once again as a social problem. Due to higher rates of interest, unemployed Roma families found themselves unable to pay the increased amounts. We also received several petitions that requested assistance, in the hope of financial support, a reduction of payment instalments, or the suspension of payment.
Government Decree No. 66/2001. (IV. 20.) on tasks relating to the reduction of arrears on home loans permits debtors that have become indebted due to the accumulation of home loan arrears and who, as a result, are in danger of losing their homes to receive budgetary support with a view to improving and re-establishing their solvency and preserving their home ownership.
In addition to the strict conditions of such support, a prerequisite is a self-contribution or, where this is absent, the opportunity of repaying the debt free of interest. The decree bound claims to a specific deadline (31 May or 15 July 2001), subject to forfeiture.
Few people could take advantage of the opportunity provided by the decree. Indeed, the majority was unable to meet the preferential conditions due to their financial situation. Such families found themselves without assistance; in fear of losing their homes, they turned to the Parliamentary Commissioner.
We were unable to give concrete support in their case; we have no authority to examine the business policy of the banks, but we did contact the municipal government in question, drawing its attention to the problems of the complainants and requesting help. In addition, we informed each applicant that they should contact the bank providing the loan, and have the earlier contract amended.
Several of our clients complained that although they had paid off their debts to the OTP, amounts were still being deducted each month from their incomes. Our inquiry found that the OTP’s procedure did not violate the law, because the complainants had merely repaid amounts less interest – in some cases several years late – and were unaware that they had accumulated considerable interest arrears, which also had to be paid off.
By way of summarising the problems mentioned in petitions relating to social issues, it is obvious that the complainants are not victims of the unlawful procedures of local governments or other state bodies. Instead, they suffer as the result of the deficiencies of employment and social policy. In our reports, we have tried to indicate the most important problems in the hope that those responsible may find solutions that will at least alleviate the problems.
III.
The administration of the right to social security as reflected in the complaints submitted to our office
1.
Legal guarantees of social rights
The social rights guaranteed by the state form part of the general human rights. Social rights are closely linked with the fundamental civil and political rights and they are indivisible. Nevertheless, the extent to which social rights and associated provisions are guaranteed in any particular state depends significantly on the economic indicators and level of development of the country. The equality – of status and of value – of the various “generations” of human rights is guaranteed neither in international law nor in the classical welfare states – including, of course, Hungary.
The obligations of the Hungarian state are determined rather broadly by Article 17 of the Constitution, which states that the Republic of Hungary shall provide for the needy through extensive welfare measures. This provision is narrowed by Section 70/E(1) of the Constitution, when it lists the situations in life – thus, old age, illness, disablement, widowhood, orphanhood, and unemployment owing to circumstance beyond a person’s control – in which citizens of the Republic of Hungary are entitled to provisions on a statutory basis. The list, however, is not taxative, for additional situations of need may be derived from other provisions of the Constitution, and these may also provide grounds for entitlement to social provision.
The Constitution makes it a requirement of the state to establish and operate a system of social provision that, together with other systems of provision, guarantees the level of provision necessary for the subsistence of citizens.
The statutory forms of social support guaranteed by the state to citizens are systemised by Act III of 1993 on Social Administration and Social Provisions (hereinafter Social Act). This is supplemented by the Local Government Act, which lists the tasks of basic social provision that must be fulfilled by local municipal governments. In order to fulfil such tasks, over the years local governments have established decrees. In such decrees they have regulated the conditions that ensure provision for the needy in the light of local circumstances. The resources necessary for the tasks are primarily provided by the state budget – in the form of normative support. Nevertheless, temporary assistance reducing the subsistence problems that most affect the population, still belongs exclusively within the scope of the local government budgets. The situation is the same with regard to home maintenance support and interest-free loans and grants for homebuilders or renovators. Roma families are in a particularly difficult situation in municipalities where the local governments lack funds and are therefore only capable of guaranteeing the statutory benefits provided by the state.
In earlier years, petitions were received by the Parliamentary Commissioner in which Roma families complained about the discriminative implementation of acts of law and municipal government decrees that were otherwise favourable and offered them social security. Due to our inquiries and initiatives, the situation has now changed. People making complaints in 2002 would still like to achieve an improvement in their living circumstances, but they do not merely demand larger amounts of assistance: they now expect work and suitable housing from the municipal governments.
Almost one-fifth of matters arising during the reporting period concerned social problems. These may be divided into three subject areas:
• social assistance;
• job opportunities, matters relating to public works;
• accommodation and housing.
2.
Problems relating to social assistance
The Constitutional Court has ruled in Decision No. 43/1995. (VI. 30.) AB that, depending on the type of need, social provisions may differ according to their nature, but they must be appropriate for ensuring the application of the right of citizens to social provision.
A new trend in 2002 has been that complainants objecting to the absence of some form of assistance, which has placed them temporarily in a difficult situation, have turned to the Parliamentary Commissioner with their petitions containing requests for assistance.
In the absence of statutory powers, we are, of course, unable to provide financial assistance, but we do call complainants’ problems to the attention of the municipal governments. At such times, it generally transpires that the family does receive various forms of support, but that the amount paid out on each occasion has not changed for years and has become so insignificant (there are cases of just 2000 Forints) that it does not meet the objective and does not represent real assistance for the family.
Social support at local level is ridden with conflicts because Roma families cannot accept the situation that has arisen due to insufficient funding. Their living circumstances have deteriorated over the years and they find that they cannot rely on anyone for effective support. Even the recipients of regular social assistance or disablement pensions are incapable of providing for their families. Thus, in the absence of considerable local government support, tensions between the local Roma population and the municipal governments have become almost a permanent feature. And yet a properly developed and functioning social policy would be of great significance, as well as a guarantee not just of the preservation of social integration but also of its consolidation.
Most local governments in smaller municipalities function under difficult financial circumstances and often suffer from a lack of funds; they are incapable of fulfilling the expectations of an increasingly impoverished and desperate Roma population. Within the confines of their budgets, they try to support the needy by offering assistance over and above the statutory benefits.
Sadly, we also encountered a case in which a municipal government had not only illegally refused to grant the requested support – probably due to the applicant’s Roma descent – but had not even accepted the application, thereby violating the rules of procedure, but had merely issued an oral rejection.
A complainant living in a small town in Pest County complained that a response had not been made to his application either before or after the statutory deadline, that he had repeatedly been misled, and that, in particular, the self-government would not acknowledge his desperately difficult situation: as a disabled pensioner he was bringing up two young children and had merely asked that school meals should be approved for his children. On submission of the complaint, the school year was well underway, but the municipal government had done nothing to assist the family.
With this procedure the municipal government disregarded the provisions of Act XXXI of 1997 on the Protection of Children and the Administration of Guardianship, which require local municipal governments to provide assistance – through provisions and measures – towards the application of the rights and interests of children. By violating the procedural rules, the local government failed even to guarantee the application of the right of the complainant to legal security.
Based on the findings of the inquiry, we requested the local municipal government to make amends for the legal violation and to cease the improper procedural practice.
The representative body did not accept the request and thus we contacted the County Prosecutor’s Office of Pest County, requesting that the exercise of the law be placed on a legal footing and that, under the scope of its functions of legal supervision, the Office should take the measures necessary with a view to preventing any future violations of the law.
In our experience, the above case is not typical; local governments generally attempt to provide school meals to needy children, even if by doing so they are forced to reduce the amounts of other forms of support.
3.
Creating job opportunities, as an important element of social provision
For the Roma population the solution would not be to raise the amounts of assistance, but to provide families with regular sources of income and to create permanent job opportunities. This is a problem in the larger towns, but in the smaller municipalities it is also an unmanageable problem, because they are unable to create jobs on their own. In such villages the only solution is to organise public works. The conditions of such are governed by law; participation is subject to an undertaking to co-operate regularly with the local labour centre. This is the reason why municipal governments cannot employ everyone in programmes of public works and explains the petitions received by us in which people complain about the lack of public works or their insufficient nature. A local government can only employ the number of people for whom it receives an allocation from the labour centre, but complainants merely see that job opportunities are few. Since they do not know how the system works, they find themselves in conflict with the local municipal government, which is unable to employ the numbers of people requiring work and incapable of meeting their needs. Although our inquiries, in the wake of the petitions, demonstrated that Roma inhabitants constitute a decisive majority of people employed on public works, nevertheless they feel that both the municipal governments and the labour centres are treating them in a discriminative manner.
In order to alleviate dissatisfaction among the Roma population, several local governments involve the minority self-governments in the division of public works and in the organisation of vocational courses. Indeed, we even know of a case where the running of the whole systems has been assigned to a Roma inhabitant who enjoys wide respect in the community and whose personal authority is capable of smoothing out the controversies arising in the course of the division of tasks. Despite all its problems, the “public works” programme is of considerable assistance to people who would otherwise have no job opportunities and would have to provide for their families out of social support. The complaints submitted to us show that most people amongst the Roma population want to work; hopefully, they shall have the opportunity to do so before long.
4.
Problems of shelter and housing
About fifty percent of matters relating to social provision that were submitted to us concern, in some form, shelter and housing.
The provision of housing would be a fundamental element of social security and social provision. In 1997 the Parliamentary Commissioner for National and Ethnic Minority Rights as well as the Parliamentary Commissioner for Civil Rights appealed to the Constitutional Court. In our petition we asked the Court to determine whether the right to shelter (housing) comprised a part of the right to social security, that is whether or not Hungarian citizens have a right to housing guaranteed by the Constitution. In Decision No. 42/2000. (XI. 8.) AB the Constitutional Court clearly pronounced that citizens’ right to shelter (housing) cannot be derived from the right to social security.
Nevertheless, the ruling also stated that, with a view to safeguarding the right to human life and dignity defined as the minimum basic requirement of subsistence under Article 70/E.(1) of the Constitution, the state must provide for the conditions of human existence. Thus the state’s obligation to make provision in situations of danger that directly threaten human life extends to the provision of accommodation. The Roma families that approached us in this matter considered the circumstances in which they were compelled to live were crampt or unfit for human existence. The media and the statements of politicians mention housing programmes, action by the state, credit opportunities, and assistance from local governments; in their experience, however, their housing problems have remained unresolved for years (or even decades), the banks refuse even to discuss credit opportunities with them, and local governments at best make pledges, but in practice nothing happens at all that would allow them to live in more humane circumstances. Roma families expect the problem to be solved primarily by the local (municipal) self-governments, most of which have neither the funds nor an appropriate strategy. Given the lack of resources, they treat merely the symptoms; for example, they place a family under threat in temporary accommodation without proper facilities that will soon become life-threatening, and they do not understand why they are further criticised, because the dissatisfaction is undiminished.
Some of the petitioners complained that they had requested rented accommodation from municipal government years ago, but had not received even a pledge from those responsible. Our inquiries demonstrate that such families are in an almost hopeless situation. Municipal governments are hardly building any flats for rent. And if they do build such flats, then they rent most of them out for fixed periods to families that undertake the monthly precautionary savings payments, as a result of which, in five years time, they can then solve their housing problems themselves, by taking out preferential home loans. Unemployed people and those living off social benefits – thus most Roma families – cannot count on rented accommodation requiring precautionary savings payments.
Housing allocable on a social basis is insufficient even in such places, and sometimes there are hundreds of eligible applicants; thus, it counts almost as a miracle if someone manages to obtain such a flat.
The opportunities of Roma families are further diminished by the practice whereby if there are two families living in identical circumstances – with the same number of points in the assessment of their applications – the flat will be awarded to the family whose financial circumstances guarantee regular payment of rent and public utility bills. This practice offers unemployed Roma families living off benefits with no chance at all of acquiring their own homes.
The situation is the same when applications for rented flats are being assessed. In connection with housing, another problem mentioned in the petitions is the increase in the costs of maintaining flats. The rent paid by complainants for their flats is generally low, due to the lack of facilities. But in addition to rent charges, there are also other public utility costs that must be paid, which together place a considerable burden on families. Families with no regular income, living off benefits well below the poverty line, and occasionally with several children to bring up, may accumulate arrears amounting to several hundred thousand Forints. And if the service-provider or the municipal government takes them to court, their eviction may become unavoidable.
Temporary accommodation, however, is generally available only in the larger towns (but not everywhere) and although people are not put out on to the streets – especially if they have children – national scandals may arise because of the accommodation provided to families. A good example of this is the case of the Roma from Paks, who were placed in acceptable circumstances only after an inquiry by the Parliamentary Commissioner.
The complaints made in the petitions, as well as knowledge of the possibilities, make it clear that a solution to the housing problems of the Roma must be found at the level of the state. Acting on their own, local governments will not be able to deal with this problem. In the past year, the repayment of OTP loans for homes built earlier on, arose once again as a social problem. Due to higher rates of interest, unemployed Roma families found themselves unable to pay the increased amounts. We also received several petitions that requested assistance, in the hope of financial support, a reduction of payment instalments, or the suspension of payment.
Government Decree No. 66/2001. (IV. 20.) on tasks relating to the reduction of arrears on home loans permits debtors that have become indebted due to the accumulation of home loan arrears and who, as a result, are in danger of losing their homes to receive budgetary support with a view to improving and re-establishing their solvency and preserving their home ownership.
In addition to the strict conditions of such support, a prerequisite is a self-contribution or, where this is absent, the opportunity of repaying the debt free of interest. The decree bound claims to a specific deadline (31 May or 15 July 2001), subject to forfeiture.
Few people could take advantage of the opportunity provided by the decree. Indeed, the majority was unable to meet the preferential conditions due to their financial situation. Such families found themselves without assistance; in fear of losing their homes, they turned to the Parliamentary Commissioner.
We were unable to give concrete support in their case; we have no authority to examine the business policy of the banks, but we did contact the municipal government in question, drawing its attention to the problems of the complainants and requesting help. In addition, we informed each applicant that they should contact the bank providing the loan, and have the earlier contract amended.
Several of our clients complained that although they had paid off their debts to the OTP, amounts were still being deducted each month from their incomes. Our inquiry found that the OTP’s procedure did not violate the law, because the complainants had merely repaid amounts less interest – in some cases several years late – and were unaware that they had accumulated considerable interest arrears, which also had to be paid off.
By way of summarising the problems mentioned in petitions relating to social issues, it is obvious that the complainants are not victims of the unlawful procedures of local governments or other state bodies. Instead, they suffer as the result of the deficiencies of employment and social policy. In our reports, we have tried to indicate the most important problems in the hope that those responsible may find solutions that will at least alleviate the problems.
IV.
The administration of the constitutional rights to human dignity and equal treatment, as reflected in submitted complaints
1.
Personal rights – and community rights violations
The aim of this chapter is to show that statements violating personal rights – such include, typically, items appearing in the printed or electronic media – not only cause specific and individual infringements of the law, but may also lead to the branding of a whole community, and literally to the discrediting of discernible groups of people.
Our office must deal with such matters for two basic reasons:
• firstly, we receive relatively large numbers of complaints and other petitions in which – on behalf of some community or group – the Parliamentary Commissioner for National and Ethnic Minority Rights is requested to begin an inquiry, determine a violation of the law, and call for possible recourse;
• given the scope of functions of the Parliamentary Commissioner, we must regularly examine the phenomenon of discrimination and the underlying causes of prejudice; thus we must keep watch of the circumstances influencing the social situation of the national and ethnic minorities.
Our objective, therefore, is to examine the “dignity of the communities” – or to use a more common expression “public dignity” – and, more exactly, to show whether instruments can be found to safeguard it within the current legal framework. In specific cases, we wish to demonstrate that communities – as well as the natural persons that they comprise – have an independent dignity, whose violation may specifically endanger society, jeopardising individual liberty and – in the end – social peace.
Based on the positive law in force (“the letter of the law”), none of the cases may be “labelled” violations of the dignity of a minority community, but this is due to the deficiencies of the law, for it is a sociological and social psychological fact that groups defined on the basis of minority identity do have their own self-esteem as well as representatives who, where they feel that their dignity has been damaged, are quite prepared to initiate official proceedings for the protection of the group. In the following, we should like to present several typical complaints, in order to demonstrate that the problem is real and needs to be resolved.
2.
The media’s mind-forming effect on society
Some media articles have infringed the dignity of Roma in Hungary by drawing attention without reason to the ethnic background of a perpetrator in the course of the presentation of a serious criminal offence: by drawing a connection between a “type” and actions that are condemned by the whole of society and legally punishable, they strengthened the generalising and characteristically unfounded view, which is already widespread in Hungarian society, that “Gypsies are criminals”.
For instance, on 25 October 2002, a daily newspaper reported that the police were investigating two Roma men, a father and his son, following the attempted murder of several people. Another report, published on 29 October, cited a Roma man’s stabbing of his eight-year-old son as an example of violence in the family, a political and legislative issue that causes tension throughout Hungarian society. The same article also emphasised that quarrels had regularly occurred in the family, thereby inferring the possible liability of the local authorities.
The editor of a public television channel not only acknowledged but also actually took pride in the fact that his editing team, by referring to the ethnic background of perpetrators, was promoting the task of providing accurate information. In a condescending tone, he then sarcastically reminded us:
“You have criticised us for saying, in connection with a crime in Békés, that the perpetrators were Roma. My dear Mr Kaltenbach, the only reason is that the suspects are Roma, whether you like it or not. These are the facts... Anyway we usually tell people if they are Albanians, Arabs, Yugoslavs, Serbs, Ukrainians or Russians.”
In a cartoon film broadcast and then repeated in the same slot by a commercial television station at prime viewing time, one of the characters declared Gypsies and Vampires to be a borderline case. Overall the situation conveyed the impression that Roma are generally incapable of adapting to the expectations and customs of society.
The above are examples of the violation and humiliation of the Roma community. Indeed, due to the effect of identifying and then alienating, they can give rise to negative feelings (hatred), but – under current prosecution and judicial practice – they do not reach the level of threat to society that is necessary for the exercise of penal safeguards, that is, the level of “incitement” or “the active encouragement of hatred”. At the same time, the legal safeguards of the Civil Code are open only to people who have been personally affected.
Nevertheless, under Section 75(3) of the Civil Code (Act VI of 1959), “personal rights shall not be infringed by conduct to which the recipient has consented, provided that his giving of consent does not infringe or jeopardise a social interest.” And since, under Section 85(1) of the Civil Code, the rights of the person – in principle – may only be applied in person, silence on the part of an infringed party may be interpreted as meaning that in his view a legal violation has not taken place.
Since the Civil Code regulates the material and other personal aspects of natural and personal rights, it does not, in any manner, protect the dignity of communities of individuals that are not legal entities. The cited examples show that with just a little legal and social knowledge it is possible to identify the persons whose reputation, respect, and rights to personal data and other personal rights may be violated without risk. People can be offended without any danger of a court case or redress and such people are, due to their circumstances, incapable of ensuring the application of the law, or communities with no legal personality can be humiliated in this manner. Particularly confident in their actions are those people who, through the merging of the two groups mentioned, violate a community of persons whose members’ rights and knowledge are unable to take a stand against the violator of the law due to the cost of a court case and above all the lack of an ability on the part of the law enforcement agencies to take action against the violator of the law. Almost all submitted complaints relating to personal rights were of this type – and in our view this was hardly an accident: these violations of law stem from intentional and rational decisions that weigh up the advantages and the drawbacks.
In such cases, when a criminal charge cannot be made and there is no common civil suit to safeguard the dignity of the community, the prompting and informative function of the Parliamentary Commissioner steps in. The Commissioner now routinely warns the press that information relating to ethnic background – unless it forms part of the criminal facts of a case – does not serve, in any manner, the provision of “accurate information”; on the contrary, it is illegal.
It is illegal because Section 2(2) of Act LXIII of 1992 on the Protection of Personal Data and the Publication of Data of Public Interest (hereinafter Data Protection Act) classifies as special items of data any data that refer to racial origin, national, national group and ethnic identity, political opinion or party allegiance, religion or convictions.
There is no rule of law that would permit the publication of data referring to the national or ethnic identity of citizens (even where they are crime suspects) – unless there is written confirmation from the person concerned, as contained in the Data Protection Act.
The “prompting function” of the Parliamentary Commissioner appears to have been very successful: our comments have been accepted by the media bodies concerned and they have pledged to adhere to the relevant regulations on data protection and personal rights; the cited episode of the cartoon series was not screened again.
But the success is merely an apparent one, for there are a great number of daily and weekly newspapers and television programmes etc. in Hungary. Thus, items violating the dignity of one or other of the communities will continue to appear in Hungary’s printed or electronic media until newsmakers wake up to the fact that freedom of the press cannot be accompanied by violations of the rights of others.
Section 3(2) of Act 1 of 1996 on Radio and Television Broadcasting stipulates that “the provider of programmes must respect the constitutional order of the Republic of Hungary, its activities may not violate human rights and cannot be used to incite hatred against persons, genders, peoples, nations, national, ethnic and linguistic and other minorities, or any church or religious group”. Indeed, although according to paragraph (3) of the same provision “the broadcasting of programmes may not have as its aim the open or indirect insulting of, or discrimination against, any minority, nor may it present or judge such minority on the basis of racial factors.” Despite the legal rules, in practice things are far from being so orderly.
Another reason for the mere apparent nature of the success is that although comments about the Roma background of individuals were no longer heard, nevertheless Roma continue to “feature” regularly in the criminal police columns and shows. People’s reserve regarding news is broken down by the view that “the news is factual and objective”. What they hear, they believe to be true, or they see their prejudices confirmed. Whereas what and who comes under the spotlight, what will and will not be news, is in itself the result of a response expressing a system of values. The choice of genre is also a conscious part of having an effect: the effect is more elementary if opinion is disguised as news. Grouping facts together, inferring, suppressing, giving intentionally one-sided accounts, present further opportunities for manipulation.
Although much news about crime stems from police sources, nevertheless none of the numerous proceedings undertaken to date have shown the media officer of the police to have violated Section 177/ B of Act IV of 1978 on the Criminal Code on the misuse of special personal data. Police inquiries undertaken at the request of the Parliamentary Commissioner have shown that the unwarranted references to ethnic background, which violate personal rights, do not stem from police sources. In response we were told again recently that with respect to the crimes of staff of the daily newspaper concerned, the press officer mentioned “was not contacted orally or in writing and thus does not bear any responsibility for the statements concerning ethnic background made by the accused in the newspaper article forming the subject of the inquiry”.
If it is merely an issue of media manipulation aimed at giving the impression of the official nature of the information, then one may well ask why the press officer in question – or the Minister of Interior on behalf of the Police – does not request a correction. [The second part of Section 342(1) of the Act on Civil Proceedings does allow – where the common interest has been damaged – for the minister responsible to ask for a correction, in addition to the person concerned.]
The Police Headquarters of Budapest, for instance, tracks the information it supplies, but does no more than “give a signal” if it finds a discrepancy between the information provided and that subsequently appearing. That is, the dialogue is merely between the police and the media. This means, however, that the public has no opportunity of finding out that the item violating the law does not stem from the police.
If reference to the police as the source of news is true (in the cited cases, the media organisations firmly alleged this), then the law enforcement agency is privy to the incitement of social prejudice.
What are the solutions under the law in force? The only guaranteed means is the exercise of the rights of the individual, although the whole community suffered a wrong. Under Section 84(2) of the Civil Code, courts may impose fines expressing the disapproval of society, if the amount that may be awarded as damages is not proportionate to the severity of the improper conduct. But this legal instrument – due to its criminal repressive nature – is so alien to the reparational ideas of civil law that the courts very rarely employ it.
3.
The problems of “public dignity” and opportunities for legal regulation
Today in Hungary, statements publicly vilifying ethnic, religious and other minorities “in a mere general sense” do not count as violations of the law. This is primarily because the Constitutional Court, in a past ruling, did not consider abstract threats to public peace to be sufficiently dangerous – when compared to the basic constitutional right of freedom of speech – to serve as a reason for a fundamental legal restriction in the criminal legal sense.
Today the Hungarian legal system only ensures the safeguarding of the dignity of the community where a violation has also caused a specific and individual grievance of interest, further if the party whose person has been affected seeks its punishment through a private suit or its redress through a civil case.
In other words, many social group and communities comprising minorities within Hungarian society currently have no protection from public expressions of hostility that are not directed at individuals (for instance, where Roma or Jews are condemned as groups).
The possibility of changing the present unfortunate situation by means of legislation is proven, inter alia, by the justification for Decision No. 30/1992. (V. 26.) AB, which states
„...the dignity of communities can be a constitutional restraint on the freedom of expression. The decision does not rule out, therefore, the possibility of the legislator providing for this – even by introducing safeguards of criminal law that go beyond the crime of incitement to hatred. (Thus conduct threatening public peace or violating the dignity of communities would be subject to a criminal legal restraint that was broader than incitement to hatred but narrower than that of slander.) The effective safeguarding of the dignity of communities could also be ensured through other legal means; for instance, an expansion of opportunities for compensation in kind.”
Communities exposed to extreme forms of hate-mongering must receive more effective legal protection. And this is a priority task for the legislator because it would help to promote
a) their linguistic and cultural identity,
b) their chances of integration towards majority society.
One should also consider the fact that Hungarian society – at least at the level of prejudice – has still not become fully reconciled with its religious, ethnic and cultural diversity – including non-traditional religious communities, homosexuals etc., whereas, in the meantime, such groups are receiving ever-greater publicity and the mechanisms by which they protect their interests are strengthening. In this environment, therefore, the tireless flagellation in public of mere “difference”, the questioning of its right to exist, and the degradation of elements of identity etc. may serve to strengthen or “legitimise” feelings of antipathy and hostility which are already present in public thinking.
If therefore we are seeking a legal antidote to the verbal “poisons”, then we should not bother about restricting freedom of speech. In pluralist democracies one cannot restrict judgements, criticisms or complaints; nor even insulting statements, if these are not confined to pure self-serving abuse, contempt, an intent to discriminate or annihilate, or the inspiring of such.
In our view, various branches of the law “may go to war” simultaneously in defence of public (community) dignity.
4.
The most blatent cases of discrimination against minority communities or
against natural persons belonging to such communities
Scholarly works on the various manifestations of discrimination and usage in the so-called “anti-discrimination” law distinguishes between direct and indirect forms of discrimination. Apart from several cases associated with employment, the Hungarian legal system really only recognises forms of discrimination that can be easily recognised as direct. The most obvious example of such is discrimination on ethnic grounds or, relatedly, discrimination due to skin colour.
Sadly, it can happen that people are excluded from public services – by apartheid means – due to their belonging (real or supposed) to an ethnic minority. Typically, such discrimination occurs in the catering industry, and – let us be frank – it is committed almost exclusively against people of Roma descent.
In the report of 1998 we mentioned our inquiries into the unwarranted denial of services. The complaints of 2002, however, require that we should re-examine this problem.
In the following, by presenting a typical and informative example case, we shall demonstrate the means of inquiry available to the parliamentary commissioners – including, of course, the Parliamentary Commissioner for National and Ethnic Minority Rights – vis-à-vis service-providing economic associations and personal undertakings which do not qualify as authorities, as well as the actions that can be taken by bodies of the Consumer Protection Directorate to counter this – particularly blatent – form of discrimination.
By way of introduction, we recall that, under Section 18(3) of the Ombudsman Act, in matters of consumer protection the minority commissioner is able to request the head of the body with scope of function or its supervisory body, as well as the head of a body that is otherwise authorised by law, to carry out an inquiry. Thus, in this case, it is the regional consumer protection directorate and the public notary of the municipality that have scope of function and competence.
For this reason in particular, we were greatly surprised by a letter in which a county consumer protection directorate, claiming an absence of scope of competence, forwarded to us a complaint submitted by a lawyer’s office.
The complainants alleged that they had been denied access to a place of entertainment by a security guard because of their Roma descent. Citing Act 1 of 1978 on Domestic Commerce and Act CLV of 1997 on Consumer Protection, as well as the Constitution and other laws, a lawyer’s office made a complaint to the regional consumer protection directorate with scope of function and competence on behalf of the complainants.
Despite all this, citing a lack of scope of competence(!), the county directorate forwarded – on the basis of Sections 6 and 7 of Act IV of 1957 on the General Rules of State Administration Procedure (hereinafter State Procedure Act) – the complaint to the Parliamentary Commissioner for National and Ethnic Minority Rights, requesting the taking of action.
In our view, the procedure of the regional directorate was in violation of the law; nor were there any legal means of transferring the matter.
Firstly, it must be underlined that the procedure of the Parliamentary Commissioner is not governed by the State Procedure Act, so that one cannot transfer a petition with reference to Section 7 of the Act. The Parliamentary Commissioner selects the measures that he considers necessary with a great degree of independence; this right is guaranteed by the provision of Section 17(1) of the Ombudsman Act
Under Section 16(1) of the Ombudsman Act, the Parliamentary Commissioner may only examine constitutional anomalies that have arisen due to the procedure, resolution, measure or default of an authority or a body performing a public service. That is to say, he may only control the operation of places of entertainment “indirectly”. Under Section 18(3) of the Ombudsman Act, however, the Commissioner may request a body authorised by law – or the head of its supervisory body – to carry out an inquiry.
It is hard to understand why the directorate should have ignored the provisions of law determining the scope of function and procedure – provisions that were indicated in the petition itself.
It is quite obvious that the regional consumer protection directorate should supervise and control any illegitimate denial of services. We can say, therefore, that the consumer protection directorate in question violated Section 4(1) of the State Procedure Act, which states that the bodies of public administration must proceed in matters falling under their scope of function. Moreover – by delaying the posting of the petition and unlawfully forwarding it – it also violated the right of its client to a rapid and simple procedure, as guaranteed by Section 2(7) of the State Procedure Act.
For the sake of legal remedy, we requested the director of the regional directorate to examine prudently the complaint, to review all recent complaints concerning the unwarranted denial of purchases and services, and to take any measures that may have been omitted.
In recent years, in the spirit of good co-operation, we have requested the Consumer Protection National Directorate on innumerable occasions to examine catering establishments concerning which complaints have been made to us. In such cases, the practice has been developed that the competent regional directorate – for instance, in co-operation with the local Roma minority self-government – performs a so-called sample-service-control.
The procedure in this particular case, however, illuminates, with regard to this issue, the lack of a proper harmony – perhaps due to the deficient legal background – between the work of the Consumer Protection Directorate and that of the regional directorates. Thus, we recommended to the director-general that he should use his powers to issue guidelines on the means of determining discrimination on ethnic grounds and the unwarranted denial of purchases and services, which would then serve as guidance for the implementation of the Consumer Protection Act.
Following our request, in Circular No. HAJ-1256-5/2002, the Consumer Protection Directorate called to the attention of the directors of the consumer protection directorates of the regional (and metropolitan) offices of public administration the following.
“Under Section 43 f) and i) of the Consumer Protection Act, the consumer protection directorates must fully examine all complaints of consumers submitted on this subject, Moreover, in the course of their proceedings, they must apply, in harmony with the Consumer Protection Act, the relevant provisions of the State Procedure Act and of Act I of 1977 on Notifications, Proposals and Complaints of Public Interest (hereinafter Notifications Act) as well as Executive Decree No. 11/1977. (III. 30.) MT (hereinafter Exec. Decree).
The discrimination of consumers belonging to any of the ethnic or national minorities in commercial or catering establishments shall be regarded as a violation of the law under Section 6 f) of the Consumer Protection Act and Sections 24(2) and 25(2) of Act 1 of 1978 on Domestic Commerce, as well as Section 23/A of Government Decree No. 4/1997. (I. 22.) on the operation of shops and the conditions of domestic commercial activity.”
In addition to the above, the circular also mentioned the fact that in their view discrimination on ethnic ground qualifies as a notification of public interest as determined in Section 4(1) of the Notifications Act, therefore under Section 15 of Exec. Decree and Point 3 of Section 33(2) of Act XCIII of 1990 on duties the procedure is exempt of duty.
The General Directorate also reminded the regional bodies that if they should determine a legal violation falling under their scope of function, then they must undertake proceedings against the offender, as a result of which a public administration resolution in accordance with the formal consequences contained in Sections 43 and 44 of the State Procedure Act must be adopted, concerning which the person notifying must be informed in writing.
(If a lack of scope of function is determined, the matter must be transferred to the public administrative body with scope of function and competence, and notification must be sent to the person notifying. In the event of an unfounded notification of public interest, a resolution of rejection does not have to be brought; however, the person notifying should be informed about the findings of the inquiry within thirty days.)
The circular demonstrates that it is always warranted – in co-operation with the national or local minority self-government – to perform or initiate a sample purchase in the shop to which the notification relates, because such complaints are extraordinarily difficult (and occasionally impossible) to reconstruct after the event.
A possible means of remedying the unwarranted denial of a service is the procedure of the consumer protection directorate. Where, however, the directorate does not exclusively apply sanctions, damages cannot be established for the person suffering the grievance and it will be unable to obtain any other correction. The parties concerned, however, may initiate a civil action on grounds of a violation of their personal rights.
5.
Anti-discriminatory legal regulations
In domestic public opinion, in the state and social organisations of legal protection, and in the workshops of the drafting and implementation of legislation, the idea has become increasingly accepted: Hungary’s anti-discrimination regulations are insufficient; prohibitions and sanctions are spread around the legal system, which occasionally function with different terminology, and the provisions are far from uniform in terms of the procedure and the system of institutions.
The idea of a comprehensive act of law arose at government level during the elaboration of a government resolution on the medium-term plan for an improvement in the living circumstances of the Roma community, according to which the possibility should be examined of how the legal provisions containing prohibitions on negative discrimination could be supplemented – with a view to the practical realisation of the principle – with appropriate procedural rules and a system of sanctions. However, before work on the strategy or the real tasks of codification could begin, there was a change of government (in 1998). The idea of a uniform codex moved – so to speak – further away from reality.
At the time, the Ministry of Justice, which would have been primarily responsible for the preparation of such legislation, was of the view that there was no need for any comprehensive regulation and that appropriate and effective action could be taken at branch level against arbitrary or irrational cases of discrimination. Since it then became clear that the various ministries did not really consider themselves responsible for the legislative deficiencies in their respective fields, our office – with the support of several legal protection civil organisations – led an initiative emphasising the need for the establishment of a comprehensive law as soon as possible.
As a result of this initiative, in the autumn of 2000 we drew up a “bill”, which tried for the first time to clarify the general and specific (branch) terminology, to cover all the possible (typical) circumstances of discrimination in life (employment, social security and health, education and training, use of goods and services), and finally to offer a wide range of sanctions.
In the meantime, the Constitutional Court rejected a constitutional complaint claiming that the legislative had breached the constitution by failing to adopt an anti-discrimination law. According to the Constitutional Court – so its explanation – the “division into branches” of the anti-discrimination regulations do not, in themselves, breach the constitution. The realisation of the anti-discrimination regulations in a multi-layered system, linked with the general constitutional regulations for the various areas of law and divided into the branches of law, is not unsuitable for the guaranteeing of effective action against discrimination. There are, of course, deficiencies in the regulations; it may happen that the structured regulations do not contain provision for certain real instances of discrimination. But this must be determined by the Constitutional Court on the basis of an appropriate motion or, if need be, ex officio.
By way of summary, we can say that during the 2000-2002 period – after the publication of the directive Directive 2000/43/EC of the Council of the European Union – the issue of anti-discrimination legislation has become the focus of attention, particularly because the directive stipulates legislative tasks that must be undertaken by non-members, too – i.e. the associate members and candidate countries.
The EU directive – as a cogent source of law – determined that the member states should, “by means of national legislation”, adopt effective rules against any form of racial or ethnic discrimination.
It is no accident that, among the European Union’s three anti-discrimination directives, it is only the directive on racial or ethnic discrimination that specifies the compulsory establishment of a system of fora – to use the common phrase: an independent anti-discrimination “authority” – in each of the member states, with the task of revealing these forms of discrimination and providing proper recourse. (The emphasis on this area is an important one, because the two other anti-discrimination directives of the European Union – on the equality of women and generally on the issue of employment – do not contain such requirements.)
Until the end of the previous parliamentary term, the Anti-discrimination Interdepartmental Committee (AIC), which functions under the direction of the Minister of Justice, did not really fulfil the role that it had been given: there was a failure even to “map out” which legal regulations in the various sectors had discriminative elements or the gaps in the law that made discrimination possible.
The new government – and this was reflected even in its election manifesto – was firm in its support for an anti-discrimination law based on uniform principles. In the spirit of such intentions, by November 2002, the Ministry of Justice had compiled a professional study entitled “A conception for an act of law on equal treatment and equality of opportunity”.
Regarding the draft of the conception – and let us hope that it was not just out of politeness – the Parliamentary Commissioner for National and Ethnic Minority Rights was asked to give his professional opinion. In the appendix of this report, we publish the official text of our opinion, which was prepared for the State Secretary for Public Administration at the Ministry of Justice. At this point, however, we wish to emphasise just one thought.
The draft of the anti-discrimination conception contains fundamentally appropriate aims, which are to be supported. Nevertheless – and it must be stated – the draft does not comply with Directive 2000/43/EC of the Council of the European Union.
The directive stipulates the establishment of a separate act of law to combat racial and ethnic discrimination, whereas the conception takes up the cudgels for a general anti-discrimination law.
Moreover, we consider the forum system proposed by the conception to be mistaken: the “Commission of Equal Opportunities” – simply because of its corporate nature – does not seem to be suited to the tasks of revealing and determining cases of discrimination or taking official action aimed at recourse.
For the sake of completeness, we should note that, taking courage from the solutions of the Dutch legislation on equal opportunities and at our suggestion, two Members of Parliament, submitting the first comprehensive anti-discrimination bill, made a proposal for the establishment of a Commission of Equal Opportunities. However, this commission, as it was envisaged by the bill, would have been merely a consultative body, comprising representatives of affected social groups (potentially subject to discrimination), with the aim of enabling people with disabilities, people of alternative sexual orientation, and various other minority groups to express their views on a regular basis, so that the legislator would not be able to take decisions over their heads in the course of its legislative tasks.
6.
The necessity of legal assistance in order to establish equality of opportunity
Similarly to the previous reporting period, this year we have again received many complaints containing requests for legal assistance.
These complaints primarily concern areas such as the prison service, the police, housing problems and employment. We have received petitions from prisoners in which they complain of difficulties in maintaining contact with their defence counsels or that their counsels are not defending them with proper expertise and care, which negatively affects them.
Under the provisions of the Ombudsman Act, the Parliamentary Commissioner and his staff may not provide legal representation. For this reason, in previous years we rejected such petitions or, as in several cases, forwarded them to legal aid offices run by civil organisations. Where we considered it justified, we contacted the legal aid offices and also encouraged the petitioners to accept their assistance. In doing so, we sought to promote and support the establishment of a dialogue between the parties as well as co-operation.
Under the provisions of the Constitution, in matters of fundamental rights concerning the assertion of rights, the state must create the legal and institutional conditions that are required if the individual is to be capable of asserting a claim arising from the violation of his basic rights. In addition and more broadly, the state may also develop further elements of an institutional system guaranteeing the effective assertion of rights. In this field, the state is obliged not only to “unfurl” – at the level of legislation – the rights and duties necessary for the assertion of basic rights, but also – outside the legal milieu – to develop a situation for each citizen in which he or she is really able to assert his/her rights. The state must, therefore, establish a support system that makes up for any possible deficiencies.
With a view to realising the equality of opportunity laid down in the Constitution, after the change of political system, several laws and government measures were adopted in order to improve the living circumstances, social situation and legal security of Hungary’s Roma community as well as to strengthen the community’s ability to assert its interests. Despite the achievements, in everyday life there are still many problems and conflicts which very likely would be solvable on the spot if professionals with expertise in their given fields would become accessible to the Roma community. The problems are exacerbated by the fact that only some of the information – or none of it – actually reaches the people to whom it is addressed, and that Roma people often find it difficult to orient themselves in the official maze. In a significant proportion of cases, proper knowledge of the rights and duties would be enough to avoid conflicts and to end the divergence of interests.
In the knowledge of the above the Ministry of Justice – in co-operation with the National Roma Self-government and the Office for National and Ethnic Minorities – expanded, as of 15 October 2001, the support system by creating the Anti-discrimination Roma Customer Service Network (hereinafter: the Network). When establishing this institution, the legislator was guided by the objective of the state, based on the constitutional principle of equality of opportunity.
Effective co-operation has developed between lawyers of the Network and our office: Since the establishment of the Network, petitions received by us in which legal representation is requested, have been forwarded to the competent lawyer, who then provides information about the state of the case and, in many instances, requests advice and consultation in issues of legal interpretation relating to discrimination. To sum up: we consider the formation of the Network an important step, because, with its assistance, citizens of Roma descent will be able to receive rapid and effective support in the remedying of their legal grievances.
For the Network to develop – which in our view is the first of a series of positive discrimination measures fulfilling a real requirement – there is a need for the elaboration of a system of criteria that could be used to follow the work of lawyers, including the giving of advice, any trial proceedings, professionalism, accuracy and results.
The Network could be expanded in such a way that a greater number of lawyers would be involved in counties with larger Roma populations, and their working conditions would also have to improve.
A significant step forward would be to acquaint the minority self-governments and Roma people with the work of the Network. Experience shows that some complainants do not know where they can receive assistance and support towards the remedying of their grievances.
By way of summary, like all state measures aimed at ironing out inequalities, we consider the legal assistance service established by the Ministry of Justice to be a valuable initiative, but it is not enough by itself. In order to establish individual and community legal protection, there is a need to expand opportunities for a public interest legal action, which, however, we have already discussed in detail within the framework of this report.
V.
The administration of the educational rights of the national and ethnic minorities
1.
An education forum organised by the Parliamentary Commissioner for National and
Ethnic Minority Rights on the present and future of minority education
Of all the rights guaranteed by the Constitution and ARNEM the provisions relating to education are of particular importance. As a consequence of several decades of assimilation policies, the role of families and minority communities in the fostering of minority culture, in the strengthening of identity, and in the process of handing down minority languages has declined, while the role of minority tuition and education in these areas has increased. In many cases, minority education represents the only opportunity to learn the minority language.
Over the past decade, coupled with positive changes and a modernisation process in Hungarian education policy, the formal regulation and system of prerogatives of minority education have also been established or renewed. In many respects, however, deficiencies and recurring difficulties characterise the practical realisation of minority education.
The situations and possibilities of the thirteen legally recognised minorities vary greatly in the field of minority education too. Whereas the implementation of the linguistic and cultural tasks of minority education is influenced, amongst the national minorities, by their differing population sizes and their ability to assert their interests – as well as the “usability” of the minority language on the labour market, the tuition of Roma children is made more difficult by the many social problems that go beyond public education.
We consider the matter of minority education to be a strategic issue, which we have examined both in previous years and again in 2002. On 27 November we organised a national forum on the present and future of minority public and higher education. The conference was prepared and co-ordinated by the Parliamentary Commissioner for National and Ethnic Minority Rights, who also hosted the conference sessions. We invited to the minority education forum experts with practical experience (the teaching and management staff of minority kindergartens, primary and secondary schools, as well as tutors and department heads of institutions of higher education), researchers, and staff of the Ministry of Education and the Office for National and Ethnic Minorities.
It is our conviction that the Parliamentary Commissioner for National and Ethnic Minority Rights must – in addition to examining individual complaints and preparing comprehensive reports – take responsibility for organising fora for discussion and debate, at which the various parties affected by minority issues may exchange opinions as equal partners. The education forum was one such opportunity; the various participants expressed as a common requirement the need for similar professional consultations and discussions in the future.
We consider it worthwhile to briefly summarise, in this report, the essence of the discussion material, which was compiled as part of the preparations for the forum, as well as the most important conclusions and proposals expressed at the actual event. In doing so, our primary objective is to promote the reconsideration and resolution of the problems that have arisen.
1.1.
Summary of the background and findings of the
discussion material prepared for the forum
When preparing for the event, we requested written opinions from experts with competence in the field (we contacted seventy-seven experts of minority education working in public and higher education) on their general appraisal of the changes minority education has undergone in recent years.
With regard to developments in recent years, we asked them, inter alia, to tell us:
• what processes could be observed in minority education and whether standards had changed;
• what actions and events (for example changes in legislation, issues of funding, actions by local municipal governments, the demands of parents and children affected, etc.) had influenced this positively or negatively;
• whether there had been results and developments in the field of minority education which in their view needed to be maintained or continued, what were the problems that still had to be resolved, and whether there had been any changes which they considered to have been negative?
Forty-three of the seventy-seven experts responded. Most of the opinions related to the teaching of the national minorities; fewer comments were received regarding the education of the Roma ethnic minority.
Based on the opinions and comments of these education experts on the major problems and difficulties, we compiled discussion material, which we then sent to all participants prior to the forum. If our office had already dealt with a particular issue, and a recommendation or proposal had been made, then we indicated this fact in the summary.
In the first part of the discussion material we summarised opinions submitted on the subject of education for the national minorities, but some of the findings were also relevant to Roma minority education. Problems and proposals relating to Roma minority education were presented in a separate chapter – in reflection of the complexity of the subject-matter, which still cannot be narrowed down to the issues of minority education as provided for in ARNEM.
In the report, rather than submit the discussion material in full, we present only the more important comments and proposals, which require action as soon as possible.
1.2.1. Education for the national minorities
Regarding issues of personnel and the provision of facilities and equipment, the following problems were listed:
• A general problem is the lack of teachers qualified to teach specialised subjects. There are no training courses for national minority teachers, which would enable the teaching of general subjects in the language of the national minority. There is neither the institutional nor the methodological background for this.
• Experts in higher education courses for national minorities mentioned the discrimination that occurred at university level between language course departments and the German minority studies department. Under the new system of requirements for the humanities, in the modern language departments, either a master of humanities degree or a master of education degree could be obtained, whereas in the German minority studies department only a master of education degree was obtainable. University degree courses in German minority studies represent, in addition to minority teacher training, an important basis for the training of minority intellectuals. Due to the above provision, one fears that fewer students of minority descent will choose degree courses in German minority studies.
• Another problem is a decline in the number of students registering at some of the higher education institutions of the national minorities. Moreover the identity of students at such institutions and their affiliation to their own minority culture are insufficiently strong. Some people questioned the level of knowledge of the minority language among students attending the higher education institutions of the national minorities.
• A further problem is that the financial rewards given to minority teaching staff are incommensurate with their overburdening and extra working hours. Due to low pay, increasing numbers of language speakers with teaching qualifications are finding work in the competitive sphere.
• Several experts believe that overall the minority textbook situation is unresolved. Although the number of books on offer has increased in recent years, nevertheless for certain school years there is a lack of books from the consecutive textbook series; there is also a lack of textbooks written in the minority language and necessary for the teaching of the various subjects.
• In addition to providing textbooks, another very important task is the provision of proper material on methodology and demonstration material to the schools of the national minorities. Besides textbooks, the other teaching materials of minority education should be modernised with a view to guaranteeing quality teaching.
Regarding the funding of minority education, the following general conclusions were made:
• The supplementary normative payment is a small amount. Due to the lifting of restrictions on its use, it is now completely uncertain that it really will be used on minority education. One may ask, therefore, whether the state’s role in funding minority education is sufficient and whether financial and professional controls and legal checks on the use of funds obtained for minority purposes have been resolved.
• Minority education and tuition institutions in small municipalities have indicated that the normative amount paid in the case of low pupil numbers is too small. The municipal governments that maintain such schools cannot or do not want to properly supplement this amount and therefore the schools struggle constantly with financial difficulties.
• The current system of funding higher education is disadvantageous to the so-called minority departments. The standard teacher-student ratio cannot be achieved in small departments; the position of faculties is exacerbated by the discriminating funding rate affecting minority departments. Maintaining minority departments is “expensive” for institutions of higher education, and the extra cost is not covered by a state normative payment.
• Several people were of the opinion that the self-administration of education by minority self-governments could only be implemented directly, i.e. where the self-governments also maintained the institutions. And although ARNEM does enable the establishment of cultural autonomy, the practical realisation of such autonomy faces several hurdles. The minority self-governments do not have the financial resources to establish and operate institutions of public education.
Regarding the formal regulation of minority education, the following problems arose:
• The publication of teaching documents that are vital from the perspective of minority education and tuition is often delayed, which is obviously disadvantageous. The fear was expressed that, similarly to previous practice, the dormitory education programme would also be delayed.
• The preparation of legislation affecting the minorities requires thorough and detailed conciliation. In several areas, the National Minority Committee has rights of agreement. The practice is for opinions to be collected concurrently from the various institutions and organisations, but this often happens after a decision has been taken by the National Minority Committee. At such times, either the request for opinions or the procedure of the National Minority Committee becomes no more than a formal sham. The national minority self-governments are often left out of the process of collecting opinions on legislation and agreements concerning minority education, or the stated deadline for the submission of an opinion does not permit a genuine reaction.
• In theory, both ARNEM and the Public Education Act provide significant rights to the local and the national minority self-governments in the decision-making process affecting minority education. In practice, however, the application of such rights is insufficient.
• After the introduction of the National Standard Curriculum there was a decline in the number of institutions providing bilingual education. The reasons for this are as follows: bilingual education inevitably requires the breaking up of classes, which is unfortunate where class numbers are very low; parents fear that knowledge acquired in a subject taught in the minority language will not reach the level that it would have done if the subject had been taught in Hungarian; some teachers also consider the number of subjects taught in the minority language to be too high; the main problem is that there are no teachers trained for this type of education; a qualification as a language teacher is all too little for the successful teaching of one or other of the academic subjects.
Several people pointed out the need to protect minority languages.
Due to the loss of language, very narrow groups use minority languages. It is difficult to find a motivating factor and therefore, in many cases, minority languages represent no more than subjects learnt at school. The role of language might grow if it were not only used during language lessons. An important objective is to ensure that minority languages should not “compete” with foreign languages (English and German), which are indispensable for further study and finding employment.• At present, hardly any vocational training is carried out in Hungary in minority languages.
Pupils have no opportunity to learn trades in minority languages; there are no functioning vocational training institutions for minorities.
• Several experts are of the view that the present state of minority education is no longer appropriate; the form and content of the study curricula of the minority institutions do not properly reflect recent changes in society or the new “market requirements” that are the consequences of such changes. There is no uniform system of evaluation and measurement, and there is an absence of data that would demonstrate trends.
• There is, further, a lack of a network of institutions suitable for minority education. There is an absence of a professional service network that would fulfil the tasks of control, evaluation, measurement and the development of teaching methods.
Regarding the education of Roma children and Roma minority education in general, the experts drew attention to the following problems:
• As a result of the combined effect of many factors in the Hungarian school system, the practice of educating Roma pupils separately in a segregated manner has increased. This process may be explained by the strengthening of the local segregation of Roma families and, in part, by the prejudicial behaviour of the non-Roma majority.
• A question that has arisen concerns the reasons why the experiences of the so-called model schools have not been systematically disseminated and why measures have not been taken to present and introduce these methods. Individual initiatives aimed at the education and tuition of Roma children cannot be successful if they remain exceptional endeavours in just one or two schools, that is, if they are not integrated in an systematic manner into the operation of the education system as a whole, and if they have no opportunity to spread.
• Experts of education research are agreed that children are still not properly prepared for going to school; this is, above all, a question of regular kindergarten attendance over a period of three years.
• There is a need for central measures to be taken with a view to making kindergarten attendance really free of charge, for at present many Roma families cannot even afford the reduced meal costs, and thus compulsory kindergarten attendance cannot be realised and equality of opportunity is damaged.
• To be successful, education needs to be based on constant contact with parents and co-operation in a spirit of partnership. Teaching staff must be made aware of this task. Kindergarten staff and teachers need to establish contacts with the Roma communities and with the families of Roma pupils.
• Conditions and facilities must be assured and financial means must be created that enable education activities designed for individual pupils as well as greater assistance and attention from teachers. The need is not for remedial education, for it is wrong to believe that all Roma children uniformly lag behind their fellow pupils, and it is also insulting that the term Roma pupil is automatically associated with the term remedial education.
• It is a peculiar phenomenon that in secondary schools and in schools preparing pupils for higher education Roma students are “directed” towards teaching and social fields. In the experts’ view this may lead to renewed segregation. Assistance must be given to expand the horizons and perspectives of Roma pupils at secondary schools, that is, to ensure that they have access to all higher education courses rather than merely those in the teaching and social fields.
• An important objective would be to ensure that it is not just Roma children that are given the opportunity to become acquainted with Roma culture: a similar opportunity must be available in the course of the professional training of people that will work together with the community in auxiliary or service functions (professionals in social work, health, police and state administration).
• The conditions for the teaching of Romanes and Beash are still lacking, and there is a particular need to broaden the range of teaching aids. Teaching materials necessary for the teaching of Roma ethnology are also absent.
• In order to bring an end to the segregated education of Roma children, the primary need is to reconsider the system of support. In its present form, Roma minority education tends to serve the segregation of Roma children and the receipt of normative payments, which often results in lower standards of teaching.
Instead of supporting Roma minority education by making supplementary payments, there is a need to reconsider the introduction of opportunities for programme funding or integrated forms of support.
Conditions of legal regulation and the conciliation mechanism
Participants in the forum are of the view that after the change of political system great efforts were made to improve the quality of minority education and tuition. In the course of the restructuring of the education system, however – amidst the rapid changes – the regulation of the minority subsystem has been delayed. The reason for this is connected with the complex conciliation mechanism.
In their opinion, unnecessary overlapping and contradictions can be eliminated and prevented if during the initial period of preparation of professional materials and draft legislation appropriate information would be supplied to the National Minority Committee and the national self-government and further if in every case sufficient time was provided for the exercise of the rights of agreement and opinion.
Structural features of minority education
Aside from several attempts, there is no minority education in vocational secondary schools or vocational training schools. Minorities should be offered a multi-vocational training system, because much of the age group studies at such institutions. There is a need to create the possibility of vocational training in the language of the minority, so that the pupils of eighth grade who do not go on to minority grammar schools are not lost to the minority communities.
Changes in quantity and quality
Alongside a general fall in the numbers of pupils, an increase in the number of participants in minority education can also be registered. The quality requirements set by the regulators can only be met, however, if the documents are sent to the institutions in time, if the schools have modern textbooks and teaching equipment, if qualified experts are working there, and if minority education is characterised by a continuity with regard to professional issues – a continuity based on a political and educational strategy spanning several terms of government.
The provision of textbooks and teaching aids
A basic requirement is the provision of modern textbooks with uniform approaches at least within individual stages of tuition. Teachers have to be found who can write textbooks, and they cannot be expected to do such work during the school holidays. The rapid compilation of appropriate textbooks should be supported by ensuring time for creative thought and by reducing the resultant burden on schools.
The funding of minority education
Quality minority education can only be achieved where there are committed minority teachers and where school headteachers do not organise minority education and tuition merely with a view to “obtaining extra resources”. For years there has been no control of the transfer and use of the supplementary standard subsidy for minorities.
Forum participants were of the view that the aim must be to ensure that the supplementary normative payments are increased at the same rate as the basic normatives and that the payment subsystem is properly integrated into the educational system as a whole, because then one could also track its use. Still, those areas of minority education that cannot be covered by the “head quotas” need to be supported through a transparent system of tenders. In their view, its current form is unsatisfactory. The suggestion was made that the conditions of tender should be announced every year by 28 February and that there should also be decision deadlines for the assessment of applications.
The motivation and appreciation of teachers
The tasks of minority education and tuition may be divided into three main groups: mind-building, community-forming, and language-transmitting tasks. In return for a minimum supplementary payment (18-42% of the basic supplementary), minority teachers provide for this complex activity. The issue of motivation should receive more serious attention. The minority supplementary payment must be increased significantly. The Act on Public Education does allow for the payment of the foreign language supplementary to teachers teaching subjects in a minority or foreign language. Unfortunately, since the legislation mentions this only as a possibility, municipal governments often do not provide it, due – as they say – to the lack of funds. In addition, there would also be a need to introduce new forms of funding that would guarantee the resources needed for the optimal fulfilment of tasks.
Several features of minority kindergarten education
For minority education the kindergarten is a very important link in the chain. It can make up in large part for the loss of the language milieu in the family. Participants in the forum consider it unacceptable that minority kindergarten education does not even have a professional task number. There is no definition of the quality criteria that an institution must meet in order to call itself a bilingual minority kindergarten. This requires a review and amendment of the Guidelines. Experts of the minority must undertake the quality assurance tasks; and there must also be a tightening up of the conditions for inclusion on the list of experts.
Continued training of minority teachers
Participants in the forum mentioned on several occasions the problems in minority education that stem from a lack of experts. German minority bilingual education underwent a significant backward development after the publication of the Guidelines and the requirements of teacher training. It is not the regulators that are the obstacle to quality improvements, but problems associated with the social esteem of teachers and the general state of teacher training. Completion of minority courses should mean more than basic training, and should enable teachers to jump categories in the classification of teachers. Several contributors underlined the importance of contacts with the kin state.
Towards the cultural autonomy of the minorities
Cultural autonomy can only be established if the long term operation of institutions is provided for each minority by the state budget. The professional guarantee of this could be the construction of a network of expert institutions and pedagogical service providers. There is a need, in every respect, to increase the role of the state and to control the efficient use of funds. Regarding the transfer of institutions, several participants argued for the accomplishment of cultural autonomy in this manner. The importance of this had been demonstrated in the case of the Croatian Language Primary School, Kindergarten and Student Hostel in the village of Hercegszántó. The experts also emphasis the importance of student hostels attached to minority schools, which ensures a continuous bilingual environment and a considerable educating function. Minorities have done much to promote quality and competitive education under the present conditions. The proof of this is that several of the leading minority grammar schools and secondary schools are at the top or in the upper third of the national list of schools every year – even for Hungarian language and literature. This is a further argument for the outlined path to cultural autonomy, an inevitable requirement of which is the transfer of institutions.
1.2.2.
Roma education working group
The contributors and participants mentioned the following opinions and proposals with regard to the education of Roma children:
The difficulties of kindergarten attendance
Many Roma children do not attend kindergartens and thus are at a considerable disadvantage when they start school. An important task, therefore, is to develop and restructure kindergarten education and to properly train kindergarten staff. Another demand is that kindergarten education – compulsory from the age of five – should provide free meals and board to children in need and that it should prepare them properly for the school-entry assessment. They also raised the problem that children of large unemployed families are refused by kindergartens with a shortage of places on grounds that the parents will stay at home with the children anyway.
The irreversibility of going to a “remedial school”
Forum participants suggested that a review should be carried out – with the involvement of experts – of the tests associated with the ability assessments that are carried out before children start school. At present, based on the results of their school-entry assessments, Roma children are often placed in “special” schools. Children with disadvantages should be taught by special needs teachers who address their individual needs, so that, by developing their abilities in the various areas, the children may be integrated, within a definite period of time, into education run on the basis of the general curriculum.
Experts from the Roma community serving as contact persons
At present, children and youth workers are working part-time in schools and most of them are not members of the Roma community and are rather ineffective. Experience shows that they have little chance of developing proper contact with Roma parents.
Forum participants suggested that social workers from the Roma community should be employed in schools and that family co-ordinators from the Roma community should be employed in kindergartens. They further suggested that that at least one or two places on school boards should be reserved for Roma parents, with a view to promoting the interests of Roma children attending such schools.
Continued training of teachers
Due to teachers’ excessive workload, so-called “extramural training sessions” should be held, and these must be run in schools – with the aid of travelling teachers. Particular emphasis should be laid on courses for teachers in methodology and on popularising existing methods. It is not enough to publish model programmes. Instead, the need is for expert assistance that can advise schools on the introduction of such programmes.
The system of mentors
Opportunities for the continued development of the system of mentors must be elaborated. Roma children in the 12-13 age group are under the greatest threat, because their parents already treat them as adults. For them, the introduction of a mentor/sponsor system might be a solution.
Roma minority education
Roma minority education contains a mixture of aspects of both social and minority programmes. This results in the strengthening of segregation. There is a lack of both the material and the academic conditions for the realisation of a purely minority programme. Higher education is similarly unprepared for this task. Under the title of minority studies, the schools in fact carry out remedial education instead of minority education. This means that even non-ethnic problems take on an ethnic dimension, and catching up may be enforced on children. The objective is that the legal regulation should be divided into two: according to social, remedial, cultural, and cultural factors.
Regarding segregation
The trends of segregation: research has shown that a large number of Roma schools were operating in the 1960s. In the early 1980s, 150 exclusively Roma classes were registered in Roma or mixed schools. The total number of Roma children in these classes was 60,000. Currently there are 770 exclusively Roma classes with 90,000 Roma pupils.
The integration normative
Participants in the working group session were particularly concerned with the integration normative currently being introduced. The representative of the Ministry of Education summed up the essence of the integration normative as follows: the aim of the subsidy is to motivate local municipal governments maintaining institutions to realise the integration of pupils rather than their segregation. The amount of the subsidy is the highest so far: 51,000 per pupil per year. Use of the integration normative is subject to the condition that at least 10% of segregated children are taught in integrated classes. The normative may be claimed by institutions in which the Roma pupil ratio is no higher than 80%. Integrated education is designed to minimise existing selective mechanisms, which may have arisen between schools or within schools, depending on the institutional structure.
Regarding the integration normative, participants in the working group raised a great number of criticisms and questions, which should have been considered before introducing the normative:
This measure can also lead to misuse, because the amount of 51,000 Forints encourages schools to acquire and keep the subsidy at all costs. The normative does not evaluate the essence of the issue and real integration; it does not measure real achievements. It is to be feared that again this year, and similarly to the Roma minority education normative, the possibility of misuse is there.
• In order for schools to get this normative, they first of all have to segregate the Roma children, so that they can then prove that they are integrating them. Bearing this in mind, what is the guarantee that the process of segregation will not begin again? Which institution will get the normative payment: the one that “succeeds” in getting rid of the “surplus” Roma children in order to achieve the right ratio? If so, then what will motivate the other school to take on such pupils?
• The groups for whom the normative can be claimed are excessively restricted, an injustice, because it is not just parents without basic qualifications that are unemployed. There is not a great difference in terms of the life-style and opportunities of skilled-worker parents, mostly unemployed parents, and those with eight grades of education.
• It is incorrect to tie the normative to the supplementary family allowance. Many families do not demand such assistance, do not know about it, or do not receive it owing to their inability to assert their claims – despite the fact that they would be entitled to it.
• The absence of a dialogue with the profession and the exclusion of the public may result in a great deal of misunderstanding and antipathy. Therefore, the parties concerned must also be involved in the practical realisation of the programme. An approach that firstly establishes a funding basis and only later establishes the professional content of a programme for the integration of children is mistaken. Many problems may be caused if Roma children are transferred into other classes, without a professional programme or proper training against prejudice. Firstly, due to the lack of properly trained teachers, Roma children may drop out of the education system in less than a year. Secondly, without a prejudice-management programme for teachers, even worse experiences may befall them.
• There was a failure to clarify, before introducing the normative, what should become of minority education (for example, with the support of the Gandhi Grammar School) amongst Roma communities.
• The normative ignores schools attended exclusively by Roma children, where there are no other schools in the village or where only similar schools may be found there.
1.2.3.
Higher education working group
Participants considered the convening of the forum an important event, which was once again drawing attention to minority education in Hungary after a long break. The opinions and comments expressed in the working group may be summed up as follows:
The role of education in preserving minority identity
In the view of the majority of the people present, after the change of political system there was a further decline in the situation of the minorities and in their ability to preserve identity. The educational institutions of the minorities are faced with the growing task of transmitting language knowledge and the various aspects of “self-knowledge” – often without the proper conditions.
There was also agreement that the most important task of education policy is to preserve and strengthen the identity of the minorities, in which the institutions of higher education must also play a major role. In addition to preserving the minority nature of courses and to providing for the tasks related to the intellectual training of the minorities, a high level of knowledge of the language and culture of the neighbouring countries would seem to be a further demand and a beneficial skill. The current curriculum structure of minority schools needs to be modernised, and they should be developed in line with the market conditions. This would require additional tutors and considerable development work, generally exceeding the current strength of the minority departments.
The opinion was voiced that one of the problems is the fact that minority education institutions are “broken into pieces”; this is linked to the small number of students and teaching staff. With a view to raising standards, there would be a need for greater institutional concentration.
The problems of German minority higher education differ, in part, from the problems of the departments of the small minorities. The number of students registering for German degree courses is enormous, which means that often there is no means of accepting pupils from good minority secondary schools. The demand was formulated that the German Department of the Faculty of Humanities of ELTE University should allocate a certain number of places to minority students.
Funding problems of higher education
Participants emphasised that college and university minority departments suffer from severe funding difficulties. The course normatives are not sufficient for the maintenance of courses with low pupil numbers, covering costs by using general university or faculty funds results in bad feeling, instability, and a lack of perspective in the affected minority teacher training institutions.
Forum participants considered the funding of minority higher education to be one of the problems that could be most rapidly resolved. The Hungarian states is bound by law to provide for higher education courses taught in the languages of the minorities, and therefore the financial background to this must be established. There is a need to define the minimum requirements that are necessary to maintain minority courses at colleges or universities. Participants consider it to be the task of each Hungarian government to ensure the minimum requirements for maintaining courses.
Minority departments do receive higher normatives under the current funding system. Nevertheless, since there are no rules governing how the difference should be spent, the institutions of higher education often do not use the money on tasks of minority higher education. Many participants thought that there should be a stipulation that they may only spend it on minority higher education. Participants also suggested that this surplus amount could be used on academic research carried out in the departments as well as on wages and salaries (an increase in staff numbers).
Minority higher education institutions as research centres
Minority higher education institutions can play a significant role in research and other academic work relating to minorities. Several departments complained that the ministries, the Hungarian Academy of Sciences, and the minority institutions fail to seek the assistance and co-operation of the minority higher education institutions, as they provide for the professional tasks (development, education programmes, writing and editing of textbooks, work on local history and ethnology etc.).
Minority departments providing teacher training and research would also be very willing to take part in the work of the auxiliary institutions of education (continued training, quality assurance, teacher training at various levels). The lack and dispersal of minority auxiliary institutions justify this. Another problem is the difficulty of funding the tasks of research; high standard academic work can only be realised on a continuous basis if the appropriate resources are available.
The lack of bilingual teacher training
The reduction in the prestige of the small languages over recent years is not a proven fact; it is quite possible that it is the unsatisfactory conditions that limit the competitiveness of these languages. According to participants, conditions for tuition in the mother tongue are still not guaranteed, while education degraded into bilingual tuition is incapable of preserving its real position, and in practice language tutor courses are carried on. Obviously, there is a link between the decline in bilingual education and the deficiencies of teacher training. There is a need for an investigation into the possibilities of starting a bilingual teacher-training course, in harmony with the bilingual courses of minority education.
Better opportunities for applying interests for minority higher education institutions
Participants in the forum were of the view that the teaching staff of higher education minority institutions are disadvantaged in relation to other college and university staff members. There are three main reasons for this:
• subject specialisation difficulties (few teachers and many subjects),
• the lack of autonomy of the organisation, and
• problems associated with classification in the higher funding category.
Due to the increasingly depressing problems, the institutions of minority higher education require ever-higher levels of support from government bodies, and institutionalised forms of such support. The experience of the past decade or so is that, on many issues, there is no consensus between the higher education institutions and the Ministry of Education. These problems and contradictions give rise to the demand that forms of representation should be established in minority higher education and that it should be run more efficiently. There needs to be a strengthening of dialogue between staff members of the various minority departments; here is a need for meetings of a similar type. One proposal was that a minority professional forum should be established, which would function permanently, with its establishment receiving partnership support from the Office for National and Ethnic Minorities.
The problem of courses and research in Roma studies
The Roma studies department faces similar problems to the higher education departments of the small national minorities: low teaching staff numbers and funding problems exacerbate its operational difficulties. Given the absence of similar departments, staff at the Roma studies department, which has been in operation for two years, are unable to discuss professional issues with teaching staff at other higher education institutions.
As part of the continued development of courses, one possibility mentioned was that the current basic course in Roma studies should be expanded with language teaching training, for the establishment of which the assistance of the Ministry of Education would also be counted upon. However for this to happen, however, the academic background and a system of criteria, similar to those of other minority languages, have to be established for Beash and Romanes language tuition. The necessity of this is shown by the increasing demand for Romanes and Beash language tuition.
It is to the ministry concerned, the Ministry of Education, that we primarily commend the comments and proposals formulated by the three working groups of the education forum. These opinions may be very useful in the course of drafting new legislation or making necessary amendments to existing laws; they may be used to appraise and further develop the practical functioning of the existing legal institutions. They also indicate that experts working in the various fields of minority education demand greater conciliation, discussion, and constant dialogue with their colleagues at the Ministry of Education.
2.
Anomalies in public education
2.1.
Discrimination due to the placement of children in special schools or classes
2.1.1.
The problems of education based on non-standard curricula
In 1999 we conducted an inquiry into the education of Roma children in special schools. The point of departure was the phenomenon that Roma children are over-represented in classes and schools following non-standard curricula (special schools).
As a result of our initiatives and recommendations, in the year 2000, legal regulations governing the placement of children in special education offering non-standard curricula (their transfer to special schools or classes) was supplemented by numerous guarantee elements. At the same time, however, the complaints received and the inquiries carried out in specific cases demonstrate that the situation has not really changed.
For this reason, we asked the Ministry of Education to take steps with a view to resolving the following problems:
The amendment to Decree No. 14/1994. (VI. 24.) MKM does, in most places, ensure parents a key position in the control process of the transfer procedure (a parent must be present at the start of the inquiry, he/she must be informed of the right to legal recourse, based on his/her voluntary request the child’s mother tongue and socio-cultural peculiarities can be taken into account during the procedure). The broadening of the rights of parents is a welcome development; nevertheless, owing to the modest ability of Roma parents to assert their rights, it is not effective.
Our analyses have shown that although the legal provisions provide for the possibility of reviewing transfers, the number of children who return to standard education is negligible. Based on our experience, the reviews are often mechanical procedures comprising just a couple of tests; that is, they are unable to show the possible development of a child.
Review results need to be based on several aspects and to be determined after a detailed inquiry.
In our report of 1999, we examined, in detail, criticisms of the tests applied. Owing to their social circumstances or cultural differences, a high ratio of children from non-average backgrounds are declared mentally disabled by the tests used to determine mental disability.
We suggested that the Ministry of Education should investigate the culture-bound nature of the tests.
By themselves, however, the changes in the legal regulations governing the transfer of pupils and a review of the tests cannot resolve all matters in this area. Our experience has shown that, when proposing the initiation of transfer procedures, school expert committees often cite the social circumstances of children rather than their mental abilities. That is to say, some teachers try to get rid of non-average “problem” children with the help of special education.
In our opinion, therefore, the training of teachers should be expanded with programmes that – as in the case of the teaching methods elaborated by the Ec-Pec Foundation in Pécs or the experimental program of the Hétszínvirág School in Marcali – provide teachers with the proper means to educate children from different socio-cultural backgrounds.
In his response, the Minister emphasised that he too considered it important that we should continue to work together to prevent any children from being sent to special schools without good reason, while ensuring that each child should receive the appropriate form of education and that all forms of discrimination in the field should be eliminated.
Thus, the Ministry accepted our proposals at a general level, but at the time of writing we have still not received an answer concerning specific measures taken in response to our suggestions.
2.1.2.
Discrimination as reflected in a specific case
A group of parents living in a village requested the Parliamentary Commissioner for National and Ethnic Minority Rights to hold an inquiry into the education policy of the village school, which was discriminating against and humiliating local Roma children. According to the complaint, Roma children were being placed in special classes; all but two of the Roma children attending the school were receiving special education.
During the inquiry, we personally visited the school where we spoke with the headteacher as well as the special needs teacher in charge of the special classes. We obtained, from the competent expert and rehabilitation committee, copies of documents relating to the placement of children attending the school in special classes (documents relating to requests for expert inquiries, describing the inquiries themselves, and containing the review procedures) and then analysed these documents.
Based on such documents, we concluded that:
Children were being taught in eight standard curriculum classes and two special curriculum classes. The headteacher confirmed the allegations made in the complaint: only Roma children had been placed in the special curriculum classes. The two special curriculum classes were accommodated in rooms away from the classrooms of pupils taught according to the standard curriculum; they were located in a separate wing of the building. However, in terms of facilities and decoration, the classrooms did not display any particular difference.
We spoke with the headteacher and the special needs teacher in charge of the special curriculum about the state of the school. About 120 pupils attend the school. Of these, twenty-four pupils attend the special curriculum class. The special needs teacher said that, in her opinion, five of the twenty-four children had been placed in the special curriculum class owing to a lack of parental assistance and background or because of language difficulties; four of the children were severely mentally disabled. Most of the Roma children had not attended kindergarten even for the compulsory one year and had only spoken Lovari on entry to the school. During the conversation, it transpired that a further four non-Roma children needed to be taught according to the special curriculum but that this was taking place in an integrated manner in the classes following the standard curriculum. When we asked why Roma children were being taught in a separate class according to the special curriculum and non-Roma children were being taught according to the special curriculum but in an integrated manner, we were told that the classes had been organised in this way based on the decision of the expert and rehabilitation committee.
We analysed the inquiry material prepared by the expert and rehabilitation committee for thirty of the children. According to the head of the Special Needs Centre, twenty-four of the thirty children were studying in “partial integration” (in a separate class), while four pupils were studying in full integration. The return of two of the children had been successfully undertaken.
During the analysis we examined whether, in the course of the procedure, the provisions of Decree No. 14/1994. (VI. 24.) MKM (hereinafter the Decree) on training requirements and teaching professional service had been applied.
We examined who (which institution) may request the inquiry of the committee, and on what grounds; whether the opinion of the committee contains the various elements required by the Decree, in particular:
a) a brief description of the inquiry, identification of the disability – or its exclusion, and related supporting facts,
b) a statement of whether the pupil can take part in education only within the framework of an institution or class established for this purpose, or together with the other children,
c) the particular educational requirements of the child,
d) a statement informing the parent that, in case of his/her disagreement with the expert opinion, he/she may initiate a procedure by the notary for the purpose of reviewing the contents of the opinion. We checked whether the procedure had begun with the parent’s consent.
Bilingualism
On the basis of the above, we concluded the following: the inquiry is requested – if the child is at risk of failing to fulfil the study requirements – by the notary, and by the school and kindergarten, the latter requested the inquiry with knowledge of the child. Such petitions often contain references to the mother language of the children. These references are always made in negative terms (as no knowledge of Hungarian, or linked with environment at risk): “narrow vocabulary due to bilingualism”, “difficulties with understanding Hungarian, Gypsy spoken at home”, “native language is Gypsy, environment lacks stimulation”, “reason for poor result: slow mental development, …and the Gypsy language”, “main reason for learning difficulties is that native language is Gypsy…”
On two occasions, the notary requesting the inquiry had written under the section entitled “relations and co-operation between the family, school and kindergarten”: “the child is of Roma minority descent”.
Section 5(5) of the Decree, which has been in force since 10 February 2001, provides for the possibility, based on the request of the parents, of a minority child’s native language and socio-cultural peculiarities being taken into account in the course of the inquiry. This provision, due to the date of its entry into force, applies to the first inquiry in the case of four of the children. However, in the case of these four children we found no statement informing the parents or any such requests from the parents.
Despite this, however, among the findings of the committee the issue of language is raised – as in the petitions, again in a merely negative role. In two instances, the committee’s report also states that the child “does not know the meaning of the words in Hungarian”. One asks whether the committee could assess with reliable results the abilities of the child concerned (there is no mention of the use of an interpreter or of calling on the assistance of someone with a knowledge of the language) or whether it simply attributed the consequences of not knowing Hungarian to the child’s alleged disability.
In summary, we may say that none of the inquiry documents or preliminary requests portrays a native knowledge of the Roma language as a value that the school could build upon or help to preserve. On the contrary, when measuring the abilities of the children, it is taken into account as a negative factor – and indicated as the child’s lack of Hungarian or low level of knowledge.
The rights of parents
Regarding the rights of parents, in connection with the inquiry requests and acceptance of their findings, it may be concluded that without exception the documents do contain the statements informing the parents as well as their signatures of agreement. At the same time, however, we must emphasise that based on the documents it is impossible to determine whether a real transfer of information took place, i.e. whether parents were aware of what they were signing up to or whether they filled out the form in merely a formal and mechanical manner.
Integration
The main formal areas of the inquiries may be found in the documents: identification of disability, or the lack of such, related supporting facts; the development stipulations to be followed. At the same time, however, we did not find any clear indications of whether the child could fulfil the stipulated curriculum only in a separate class or school – or in an integrated manner. Generally speaking, the documents contain references such as “special primary school of preparatory nature” or “primary school for children with learning difficulties”. There is just one exception – where the school requesting the inquiry asks for the possibility of integrated education, which is permitted by the committee, subject to teaching of a special curriculum to the child. In this issue, therefore, the committee tends not to infringe the provisions of the Decree. Nevertheless, the head of the Special Needs Institute that runs the expert and rehabilitation committee points out in a letter: “many children requiring special needs education are suitable for integrated education. The committee considers it important that this form of education should be an option for parents, because – since unprofessional “cold” integration is disadvantageous to children – we provide expert assistance to institutions expressing interest. In our county, to our knowledge no institution has a charter of foundation that includes integrated education, thus following the current regulators we are unable to make a proposal for integration given the absence of an institution that could be indicated.” Thus, the committee – citing the absence of an institutional background capable of realising integration – does not generally propose integrated education.
Regarding integration, we should also mention the reactions of Roma parents and children. On several occasions (in three instances), the documents mention – in the teachers’ opinions necessary for the control procedure – that the teacher does not wish to change the status of a child because “the parents would not agree that the child should fulfil its school attendance oblation at another type of school”. Another recurring item mentioned by the maker of requests is that “due to a fear of problems in fitting in, the child was not taken to kindergarten, although the parents are co-operative.” Or a reference to the fact that a child is unable to develop relationships because of its general anxiety. One of the documents requesting an inquiry states the following about the child’s relationships with other children: “we cannot really speak of a friend, because he makes no attempt at establishing a long-term relationship with anyone (motivating effect of prejudice)”. Lessons may also be drawn from the story of another child, who was finally returned to the standard class, for whom the committee recommended a standard curriculum education based on the first request (1998). However, based on a letter that the school head wrote to the committee requesting advice, it transpired that the child did not want to go into the standard curriculum class. The committee, over a period of three years, determined that the child is able to complete primary school, but the child could be transferred only in 2001 due to the protests of the family and the child. So it must be underlined that, within the village, the gap between Roma and non-Roma inhabitants is also nurtured by the fears and anxieties of the Roma, who, due to their manifest desperation, do not dare to take action and become resigned to the status quo. (This is indicated by the fact that a local minority self-government has still not been established in the village.) The school “merely” reflects the differences within the village: most local Roma live in detached segregation under very poor circumstances at the edge of the village. It is the school and the municipal government (plus its institutions) that are in a position to initiate a change to this segregation – rather than the Roma minority living in a world of disadvantage and exclusion.
The school’s practices relating to the organisation of education present the following picture: even at the time of the personal visit, it became clear that of the twenty-eight pupils studying in accordance with the special curriculum, the four non-Roma children were being taught in an integrated manner alongside other children following the standard curriculum. On the other hand, the twenty-four Roma pupils were all being taught in special classes.
In the case of two of the four children participating in integrated education, the professional material contains no trace of a request for integrated education, the committee’s comments are limited to determining a mildly abnormal mental ability and to indicating the special primary school. In these two cases, therefore, the school’s decision on integration was voluntary – without objective professional arguments.
In the third case, the child’s parent appealed against the decision of the committee and requested that the child should receive an integrated education, which the notary – in a resolution – approved. In the course of the notary’s procedure, a new expert committee opinion was not prepared. Thus the decision concerning the placement of child in integrated education was not based on professional arguments. The notary authorising integration underlined, in the grounds for his decision, that the committee was proposing the pupil’s placement in a special faculty of the local school, but since the parent was unable – due to a shortage of places – to register his child at the school in Székesfehérvár with a special faculty, he was granting the appeal. That is, the notary’s reasons do not contain a logical explanation for the decision ( – since there was no shortage of spaces in the special faculty of the local school, where the committee had placed the child. The school in Székesfehérvár, mentioned in the reasons, would probably have been the parent’s choice.) In this case, therefore, it is not the decision of the school that is behind the choice of integrated education, although here too, no professional arguments may be found – the committee did not support integration; by way of reaction, the notary issues a resolution approving integration and emphasising that the child should be taught under integrated conditions on the basis of a special curriculum – instead, this is really about the parents’ ability to assert his interests.
In the case of the fourth child, the application of the school requesting the inquiry does include a request for integration, which is then met by the committee, with reference to it. Other facts supporting the necessity of integration are not clarified by the inquiry. The pupil belongs in the upper category of mild mental disability, but among the Roma children there are also two borderline cases, where the issue of integration was not even raised. Indeed, it seems as if the request of the inquiry petitioner determines the committee’s position: in case of the Roma children, the kindergarten initiating the inquiry automatically requests special education. The letter received as an attachment to the inquiry material also refers merely to such requests made by the school, as an explanation for integration.
Summarising the above, we may say that, where special curriculum education is organised, Roma children who are obliged to receive special education are taught in separate classes, whereas non-Roma children similarly obliged by the expert committee to receive special education are taught in an integrated manner. In the case of two of the four pupils taught in an integrated manner, we found no objective reason for integration. In the two other cases of integrated education, neither the state of the children or the necessary development requirements justified integration: the decision was based in the case of one of the children on a resolution issued, at the behest of the parent, by the notary, based on a misunderstanding and ignoring the expert opinion; in the case of the other child, the decision was based on the mechanical implementation of the request of the initiator of the inquiry. Thus our inquiry was unable to prove an objective reason for the making of a distinction, unrelated to the ethnicity of the children. The practice does, therefore, discriminate against Roma children.
Based on these circumstances, in a letter to the school headteacher, the Parliamentary Commissioner requested that the school
• co-operate with the Ec-Pec Foundation to promote the integration of those children receiving special education whose integration could be achieved in the view of the expert committee;
• evaluate – after proper information had been given – whether there was a demand among Roma parents for the fostering of Roma culture and language. And if so, whether the school should organise Roma minority education.
At the time of the writing of this report, the school’s response to these initiatives is still unknown.
2.2.
Discrimination in establishing the conditions of
education,
attempts at segregating Roma pupils
Teachers are divided about the best means of eliminating or reducing disadvantages in education. However, there is agreement among a majority of experts that, with greater attention and care, teachers can encourage children whose relative performance is poor to achieve better results. An expectation could be, therefore, that pupils who find it difficult to fulfil the requirements of learning should receive more help from the school than do their fellow pupils. There is a need for such measures, because a school’s performance is not just dependent on pupils’ willingness and capacity for study, but can also be strongly influenced by the social and family background of children as well as their cultural affiliation.
In our experience, the education system fails to emphasise adequately the promotion of equal opportunities and regards the development of pupils that have been “left behind” as a secondary issue. This is particularly true in the case of Roma pupils, since, owing to prejudice, people around them are quicker to say: “they are incapable of meeting social expectations”. Very often teachers themselves are unable to approach Roma pupils without preconceptions. They feel that they must meet the demands of non-Roma parents, who – complaining that they prevent others from advancing – consider that different treatment should be given to Roma pupils. It is a well-known fact that a large proportion of Roma children receive reduced-value education. Their teachers devote less time and attention to them, and they give up trying to achieve real results.
.
The segregation of Roma pupils continues to be a grave problem. The cases below illustrate that segregation can take place both between educational institutions and within individual schools.
In last year’s report we briefly noted an inquiry that we had begun concerning a foundation school. In a village, the local municipal government passed a resolution – despite the opposition of the local minority self-government – that it would provide the material conditions for the operation of a foundation school that parents wanted to establish. We must return to the case because in March of last year the municipal government rented out a part of the school that it maintained, to the foundation. By establishing the private school, they tried to create the legal framework for a form of education that would clearly result in segregation.
Despite the protests of the local minority self-government, rather than reject the practice that was leading to school segregation, the representative body of the local municipal government proclaimed it to be proper and worthy of support. The local government handed over the section of the building to the foundation for a rent fee of 1 million Forints for a term of two years. In return for the monthly rent of about 40,000 Forints, the municipal government even agreed to pay for the auxiliary costs – water, gas and electricity. It is therefore quite obvious that the representative body was offering considerable financial assistance to the foundation school, the sum of which would otherwise have been spent on operating the municipal school. The village’s “social differentiation” was cited as justification for the local government’s support of the foundation school. In the local municipal government’s view, if there were just one educational institution in the village, then it would become the arena for a strengthening of “social confrontation” between Roma and Hungarian inhabitants.
In our view, the local municipal government’s support for the foundation school was motivated by the implicit but nevertheless real aim of separating Roma and non-Roma pupils.
Discrimination can be determined even without any proof that this was indeed the intention. The municipal school comprises several buildings. One of the buildings was built in the 1960s, while the other section of the school, built in the 1990s, is located in another part of the village. It was part of this new, modern building that the municipal government handed over to the foundation school. In consequence of the division of the building, the school gym would have passed to the foundation school. Pupils of the municipal school would have been forced to go – even in winter – to another gym at a distance of about one kilometre. In the divided building, use of the dining hall would have been restricted to pupils of the foundation school. It was foreseen that the most of the specialist equipment classrooms necessary for tuition would be transferred to the foundation school.
Another reason why, in our view, the decisions of the local municipal government violated the law is that the municipal government’s resolution concerning the renting out of part of the school building complex, that is, its decision to reduce the number of classrooms, clearly qualifies as a municipal government decision affecting members of the minority community. For this reason alone, the opinion of the minority self-government should have been sought prior to the decision.
Regarding the municipal government’s decisions, the Parliamentary Commissioner for National and Ethnic Minority Rights submitted a recommendation to the Office of Public Administration. The Office of Public Administration accepted the recommendation and commented on the legality of the municipal government’s decisions. Following rejection of its comments by the municipal government, the Office of Public Administration requested the court to annul the resolutions of the municipal government. In addition, exercising its rights of supervision, the Office of Public Administration cancelled the operating licence issued by the notary public to the foundation school, and thus tuition at the school was unable to begin.
The court took no decision on the merits of the legality of the establishment of the foundation school. It did not examine whether minority education was being undertaken in the school maintained by the local municipal government, and therefore could not have come to a decision on the legality of the resolutions of the local municipal government. It rejected the claim of the Office of Public Administration merely on grounds that it infringed procedure.
Even despite the final decision of the court, there was clearly no judgement in the matter. Thus there is no legal obstacle to the court’s re-examining the matter and coming to a decision – this time on the merits of the case. With a view to this, the Parliamentary Commission for National and Ethnic Minority Rights initiated the submission of a Prosecutor’s notice of protest, to which, however, it did not receive a response.
Our inquiries demonstrated that discrimination may be revealed in the establishment of the material conditions of education. A significant number of complaints are concerned with different treatment in the course of education and the establishment of the material conditions of tuition. This direct form of discrimination includes administrative solutions that lead to the segregation of Roma and non-Roma children. Repeatedly, Roma children are provided meals at separate tables and use different tableware. Meanwhile, in the kindergartens, there are different bedlinen-holders and separate “Roma” and “Hungarian” cloakrooms and washrooms.
To prove such practices, the Parliamentary Commissioner holds unannounced on-site inquiries. Where discrimination is demonstrated, he calls upon the schools/kindergartens, as well as the bodies that maintain them, to discontinue such practices.
The general defence of the institutions of public education in such cases is that if they were to discontinue segregation, non-Roma parents would send their children to other schools. In villages with just one educational institution, this would also mean that the normative payments received for each child would go to another local municipal government, thereby jeopardising – in many cases – the continued operation of the local school. The process would lead to a school attended mostly by Roma pupils. We see the difficult situation of schools and we understand their attempts to fulfil the expectations of non-Roma parents, but we still cannot accept the discriminative procedure.
We received a complaint from a group of Roma parents in a village, who objected to the fact that Roma children were being given different tableware (plastic cups and flowery plates) at meals. Non-Roma children were given glass cups and plain white plates. They also complained that meals were given at separate tables.
In the course of an on-site inquiry, we checked the use of tableware. It was confirmed that Roma children received their lunches on blue flowery plates whereas non-Roma children were given plain white plates. All the children received their drinks in glass cups; according to one of the kitchen staff, plastic cups were used only for hot drinks during the 10 o’clock break.
The visit also revealed not only the use of different tableware but also that meals were given at different times to Roma and non-Roma children. Pupils receiving special curriculum education – the Roma children fell, almost without exception, into this group – eat at 11.45 a.m. even if they have another lesson after this, whereas the other children eat after their last lesson. It transpired that the meal system was basically designed to ensure that the Roma children should eat separately. A discussion with the headteacher revealed that this practice was due to the protests of non-Roma parents. She stated that several years ago they had tried to organise joint mealtimes, but had been forced to abandon their efforts due to the resistance of parents.
We found, therefore, that pupils receiving special curriculum education, that is the Roma children, eat from flowery plates while non-Roma children, pupils following the standard curriculum, eat from white plates. This is the practice even if some of the pupils following the standard curriculum do eat at the same time as pupils following the special curriculum: during our visit one of the pupils following the standard curriculum had to go home early: he was eating at a separate table from a white plate.
We spoke to a female kitchen worker about why she serves food to Roma children on flowery plates and to non-Roma children on white plates. The flowery plates had already been washed up by the later mealtime, but the pupils following the standard curriculum were not served their meal on them. Moreover, the young boy, a pupil following the standard curriculum, who was eating at the same time as the pupils receiving special education, also received his food on a white plate. The female kitchen worker showed us the tableware cupboard: the different types of plates were stacked in separate columns and, as she explained, there were just enough flowery plates for the special education pupils, but the quantity was not enough for the others (there were only enough white plates for the pupils following the standard curriculum), and to avoid argument, pupils having their meals at the same time were given their food on the same type of plate. This explanation does not stand up because the standard-curriculum pupil eating at the same time as the pupils receiving special education was also given his food on a white plate. The female kitchen worker was unable to answer our query, telling us that this was simply how she usually did things.
We found that before our on-site inquiry a female journalist had visited the school and that, having spoken to her, the headteacher wanted to change the practice of serving lunches on different plates. Despite this, we were confronted with the practice described above.
We asked whether it would be possible for pupils to eat together and from the same plates? According to the headteacher, the problem of the plates was merely a question of money, but until now it had not occurred to them to buy plates of one type, for there were many things that the school could not afford. It would not be so simple to arrange for the pupils to have lunch together: according to the teachers, non-Roma parents would take their children away from the school, if that were to happen.
In this particular case, we made the following conclusions: the inquiry confirmed the contents of the original complaint. We found two manifestations of discrimination in the course of the school meals. Firstly, Roma children were eating from different tableware; secondly, their meals took place at a different time.
We concluded that the headteacher had already taken steps to ensure that all the children used the same tableware. This, however, had only been implemented partially; the female kitchen worker continued to make an automatic distinction and was unaware that this there was anything wrong with her doing so. As regards the different mealtimes, however, the intention was demonstrable. The headteacher said that four or five years earlier they had attempted to organise joint meals but the system had been unsustainable due to the resistance of parents. This practice must be ended at all costs, because it gives rise to illegitimate discrimination between Roma and non-Roma children.
With a view to ending the anomaly, the Parliamentary Commissioner for National and Ethnic Minority Rights asked the school’s headteacher to discontinue the discriminative practice of serving meals to Roma children on different plates and at a different time, and that she should initiate a dialogue with non-Roma parents to gain acceptance for this measure. At the time of writing, we still do not know the response of those involved.
2.3.
Registration as private pupils
As various complaints made to the Parliamentary Commissioner for National and Ethnic Rights demonstrate, registration as a private pupil often becomes a means of discrimination. The Commissioner received several petitions which alleged that school headteachers were persuading the parents of “problem” pupils – or sometimes even threatening them – to request that their children should be registered as private pupils. The Roma parents, who often are poorly equipped to assert their interests, are unable to defend themselves against the “persuasion” of the school. Children that are registered as private pupils, however, generally have fewer opportunities for further study and, consequently, of finding appropriate jobs later on.
We therefore asked the Ministry of Education to review the legal conditions of a child’s becoming a private pupil and to supplement the law with guarantee elements that would prevent schools from using this legal institution as a means of discriminating against Roma pupils.
Having received notification of the problem, the Ministry of Education amended Section 23(1) of Decree no. 11/1994. (VI. 8.) MKM as follows: “if a pupil – based on the choice of the parent, made under Section 7(2) of the Act on Public Education – satisfies the learning requirements as a private pupil, within three months of notification of this the head of the school shall obtain the opinion of the child welfare service that is competent according to the place of residence of the pupil or, where this is unavailable, his place of stay, with a view to deciding whether this solution is deleterious to the pupil or not. The child welfare service must send its opinion within fifteen day.”
Despite the amendment, we continue to receive complaints in this area. More often than not, the local municipal government, the school and the child welfare service take the same position. Several complainants objected to the fact that even the child welfare service approves of registering pupils as private pupils or that it supported expert opinions approving of the pressure exerted by the school and the municipal government. At the root of the phenomenon is the often-desperate situation of Roma parents and the idea that one can only deal with difference by means of detachment and segregation.
We are informed that the Ministry is planning further amendments against abuses of the system of registering children as private pupils. In addition to the child welfare service, it is foreseen that the guardianship authority would also be entitled to inform the notary public of the competent local municipal government if it considered that the status of private pupil would be disadvantageous to the pupil, or that, as a private pupil, the pupil could not be counted on to finish his studies. This would create a further counterbalance against the possible interest of a headteacher in a child becoming a private pupil. Nevertheless, it still does not step beyond the circle formed by institutions that are maintained and run by local municipal governments.
VI.
The language rights of the minorities
1.
A change in the minorities’ right to the use of name
Several previous reports have made reference to the inappropriate legal regulations governing the registration of minority first names on birth certificates. We must address this issue once more, owing to two events: firstly, the Constitutional Court rendered an interpretation of the possibilities of state restrictions on the right to use one’s name; secondly, an important amendment to the law was made.
In recent years we have, on several occasions, reminded the legislator that the birth certificate registration procedure is still governed by legal provisions that were adopted before the entry into force of ARNEM. In recent years Law-decree No. 17 of 1982 on birth certificates, marriage procedure, and names (hereinafter: Law-decree on birth certificates, marriage procedure, and names) has been amended several times, but it has not been harmonised with the provisions of ARNEM. As a result of this, parents were able to choose foreign first names at will, registering them on birth certificates as first names used among the minority communities in Hungary. The Parliamentary Commissioner for National and Ethnic Minority Rights made two proposals aimed at remedying this anomaly: either everyone should receive the right to freely choose first names – in which case the provisions on the compulsory use of the Book of Hungarian First Names should be abrogated – or guarantees should be incorporated into the law which exclude the possibility of misuse.
Irrespective of our efforts, the Constitutional Court also examined this issue and arrived at a position corresponding to our latter proposal. In Decision No. 58/2001. (XII. 7.) AB, the Constitutional Court argued as follows: “without doubt, the circumstance that the minorities do not have to verify their ethnic affiliation may give rise to abuse. Although the legislator clearly had no intention that non-members of minorities would also use this opportunity, the present manner and content of the regulations do not exclude such a possibility. By acting to further differentiate and define the legislation, the state must bring an end to the development of this practice, which stems from the regulation itself but is capable – in certain circumstances – of negating the real legislative intention and will.” The Constitutional Court also found that the right to choose a name may be made subject to certain restrictions of the state and that such a measure will only breach the constitution if it is unnecessary and out of proportion. Overall, the Constitutional Court did not judge the compulsory nature of the Book of Hungarian First Names to be a restriction violating basic rights. It declared that the use of the Book of Names could not be objected to from a constitutional point of view. Nevertheless, there is no indication that the state must implement this restriction. We continue to believe, therefore, that the future path of the fulfilment of personal rights – as expressed in the choice of names, would be for the compulsory application of the Book of Hungarian First Names to be discontinued.
It was during the period covered by this report that the Parliament adopted Act XLV of 2002 amending the Law-decree on birth certificates, marriage procedure, and names. Legislation had become imperative due to the cited decision of the Constitutional Court that annulled several of the provisions of the Law-decree. The legislation was preceded by long preparations. For this reason it is incomprehensible why it was only at the last moment – and at the behest of the Parliamentary Commissioner – that the national self-governments of the minorities were given an opportunity to express their opinions.
It may be stated that this amendment affects the language rights of the minorities to a greater extent than any other provision ever since the ratification of the Languages Charter. The provisions of the Law-decree on birth certificates, marriage procedure, and names that are already in force guarantee the right, at the request of marriage couples – and if the registrar conducting the marriage, the witnesses, and both marriage partners understand and speak one of Hungary’s indigenous national and ethnic minority languages – to marry in the given minority language. The Act provides that persons belonging to a national or ethnic minority may give their children first names in line with their national groups, may request corrections to their own first names in line with the first names used by their minorities, and are also entitled to register their first names according to the rules of their mother languages.
With a view to implementation, on 1 January 2004 regulations will enter into force guaranteeing that only first names customary in a given community may be registered as minority first names. In line with a proposal of the Parliamentary Commissioner for National and Ethnic Minority Rights, a provision was adopted concerning a Register of Minority First Names – to be compiled by the national self-governments of the minorities and edited by the Hungarian Academy of Sciences – which will contain a list of selectable minority first names. The possibility of registering minority first names that are not listed in the Register of Minority First Names, will be governed by the official position of the national self-government of the minority concerned – a position that must be issued within fifteen days of the receipt of a request.
We should like to indicate in this report that the ministries affected would be justified in consulting with the national self-governments about the technical and other conditions necessary for the fulfilment of this task. The legislation must explain what registration “according to the rules of the mother language” should actually mean. Several minorities – for instance, the Armenians and the Serbians – do not use the Latin script. For this reason, one needs to clarify whether or not they will be able to demand such registration. Fulfilment of such requests – in the absence of registrars speaking the language – appears in practice to be rather difficult to implement, and therefore there is a need to elaborate the technical rules of registering names.
In late 2002 the Ministry of Interior prepared the draft of a decree on the bearing of names, the changing of names, and the birth certificate and marriage registration procedure, as well as detailed regulations on the professional registrar examination. The Parliamentary Commissioner for National and Ethnic Minority Rights was concerned about the issuing of the decree, since the draft version contained no mention of regulations on the application of minority language rights in the birth certificate and marriage registration procedure. We were recently informed that the Ministry is revising the decree draft. We consider a correction of the shortfall to be unavoidable, because, in the absence of such, it would be questionable whether the provisions of the Law-decree on birth certificates, marriage procedure, and names could be implemented.
2.
Minority languages: in a subordinate role with regard to language examinations?
Under Section 95(1) of Act LXXX of 1993 on Higher Education (hereinafter Higher Education Act) students are to conclude their studies in under-graduate courses (at university or college level) or in post-graduate courses by taking final examinations, and in higher vocational courses (within a system of accredited schools) by taking vocational examinations. Section 95(4) lists, among the prerequisites for taking the final examination, a requirement to obtain a language examination certificate as prescribed in a separate law and recognised by the state.
Point d) of Section 72 of the Higher Education Act authorises the Government to determine the qualification requirements for the various undergraduate courses of higher education, including the language examination requirement. How did the Government exercise this right? What are the achievable objectives on the basis of which it indicated the languages in which language examinations could be taken for the various courses of higher education? Do the current regulations guarantee language examination opportunities in the languages of Hungary’s national and ethnic minorities, or are such languages subordinated to some other “higher order” interests?
This issue was drawn to our attention by petitions complaining that, as part of the autonomy of universities, several universities were narrowing down the language examination opportunities prescribed by law for individual courses: thus, it was not possible to take a language examination in a national or ethnic minority language.
For example, the healthcare college of one of the universities narrowed down one of the legal prerequisites for taking the state examination in a university course in nursing, according to which students should have an intermediate language qualification of type C and recognised by the state, in a so-called “world language”. The university even made students sign statements accepting this condition.
Another university “supplemented” the deficient government decree regulation governing the course of healthcare teacher with internal rules that greatly restricted students’ options.
Three legal regulations apply to the nursing courses, which was the subject of the complaint. In the university’s view, the two legal regulations applying to (college-level) diploma courses and (university-level) degree courses in nursing must be applied jointly: the language examination rules of Government Decree No. 85/2000. (VI. 15.) – which permit language examinations in any language – is made more concrete by Government Decree No. 36/1996. (III. 5.) which states that “it shall determine the group of languages in which a language examination is acceptable”. This approach suggests that students of university degree courses in nursing may only take their final examinations if – inter alia – they acquire the prescribed language examination certificate in English, German, French, Spanish or Russian.
We pointed out that this interpretation is erroneous, and probably stems from the fact that the title of Government Decree No. 36/1996. (III. 5.) on the qualification requirements of higher education undergraduate courses in healthcare, implies that the scope of the decree applies to all higher education undergraduate courses in healthcare, whereas in actual fact the qualification prerequisites for a university degree course in nursing are determined in Government Decree No. 85/2000. (VI. 15.). Thus, students of university courses in nursing may (on the basis of their own decision) acquire a “C”-type state or equivalent language examination in any language – and thereby fulfil the conditions for taking the final examination.
The legal interpretation is undoubtedly made more difficult by the third legal regulation. The conditions for taking the final examination were further modified by Government Decree No. 77/2002. (IV. 13.) on the supplementation of the qualification requirements of higher education undergraduate courses to accommodate credit-system courses: Point 9.2 of Annex 3 regulating the special qualification requirements of healthcare courses – unlike the earlier provision – extended the scope of the rules applying to university courses to university courses in nursing. But since Government Decree No. 77/2002. (IV. 13.) entered into force on 1 September 2002, it is the previous regulation that applies to students who are currently in at least the second year of the course.
The university accepted our legal interpretation and our associated initiative.
We cannot report a similar success in the matter of the healthcare teacher, despite the fact that the situation was quite unambiguous. Government Decree No. 160/1997. (IX. 26.) on the qualification requirements of this course does not identify either the level of the language examination required nor its type. The decree does refer to the separate legal regulation relating to teacher qualification requirements, but the legal regulation in question, Government Decree No. 111/1997. (VI. 27.), in part refers back to the decree and in part makes forward reference to the legal regulations governing the initiation of a course; thus, it gives no real point of reference.
Thus, the question was, given the absence of a specific legal provision, and within the scope of its autonomy, could the university
1. determine the level and type of language examination as a prerequisite for taking the final examination?
2. and if it could, could it then determine certain languages?
In our view, based on the rules in force, the answer to both questions is no:
For Point d) of Section 72 of the Higher Education Act authorises the Government to determine the qualification requirements of courses of higher education basic training, including the language examination requirement. Despite the declaratory wording, this is not just a possibility for the Government but also its obligation. (Traditionally, Hungarian legislation does not formulate obligations in the imperative mode.) The issue cannot be resolved by pointing to university autonomy or by citing the deficient nature of the regulations and the resulting legal insecurity, because this would run counter to the general ban on the removal of a scope of authority. Therefore, this anomalous situation must be discontinued by legislative means.
If the government decree relating to a particular course does not narrow down its scope, then the general right of students to choose among the various languages cannot be restricted by the internal rules of the university. This entitlement is broadly guaranteed by Section 95(4) of the Higher Education Act and by Sections 2(1) and 3(1) of Government Decree No. 71/1998. (IV. 8.): the language examination may be taken in any foreign language chosen by the examinee, in Hungarian as a foreign language, or in a classical or artificial language.
The examples that have been analysed demonstrate that only the students can “come out” badly of a clash between the Government and the principle of university autonomy: the Government indicated the range of languages that may be chosen on the basis of access to foreign literature, while if the university does have some freedom of movement, then it decides on the basis of the competence of its own language reading apparatus. The individual interests of students (their right to self-fulfilment, the possibility of the “taking into account” of an earlier language examination) are ignored in much the same way as the languages of Hungary’s national and ethnic minorities.
The reading of foreign scholarly works expands academic knowledge and skills; this objective is indicated in Section 7 of the Higher Education Act as one of the tasks of higher education. But just as much emphasis is placed by the Act on the application of expert knowledge and also on preparation for an intellectual existence.
In our view, in the course of their work,
university educated nurses (and indeed almost all professional healthcare
workers) could make use (in addition to Hungarian) of the languages of the
national and ethnic minorities, of which only German counts as a world language
prescribed for the course. (In this respect, of great significance is the fact,
backed up by sociological research, that the disadvantages of Roma whose mother
language is not Hungarian are multiplied by the difficulties of establishing
contact in the course of using the system of healthcare provision.) We could
say similar things about healthcare teachers...
The one-sided preference of being able to read up-to-date academic literature,
is not only professionally ungrounded, but also without doubt discriminative
for the national and ethnic minorities of Hungary. Although it is possible to study and take language examinations in
these languages, nevertheless, quite clearly, far more people would do so if
this would also mean the fulfilment of the language requirement for taking the
final examination.
ARNEM – in conformity with the Constitution – states that the national and ethnic minorities share in the power of the people, they are constituent elements of the state, along with the Hungarian nation, and shall take part in the with equal rights in the resolution of state, social and economic tasks, and share in all the benefits that accompany this bear all the burdens which are borne by the Republic of Hungary. With a view to guaranteeing equality, ARNEM mentions active minority protection, which means in essence that the legal system does not just tolerate the minorities, but also promotes the preservation of their identities.
Equality is also a rule at the level of language: there is no official state language in Hungary; that is, the languages spoken by the minorities have, in a legal sense, full equality with the Hungarian language. Since the legislation recognises the languages of the minorities as factors that hold the community together, their support – also in the field of language examinations – is a task of the state.
For many people belonging to minorities, their own language has become a foreign language, in the study of which they would invest more effort if this would have a direct benefit. Another potentially important aspect in the support of the preservation of minority identity is that the guarantee of the survival of the minorities in Hungary is the existence of an intelligentsia that speaks the mother language.
We should also note that if the mother language of a student belonging to one of the minorities is the minority language, then not only is it acceptable as a prerequisite of the final examination, but the student could not take a language examination in the language.
VII.
The administration of constitutional rights linked with the protection of personal data and the publication of data of public interest, as reflected in complaints involving minority rights
1.
Minority rights contra data protection?
In the reports of our activities in 1998 and 2001 we presented a couple of cases involving issues of both minority law and data protection law. By way of reminder, we recall that the publication of a joint position by the Parliamentary Commissioner for National and Ethnic Minority Rights and the Parliamentary Commissioner for Data Protection took place in 1998 on the subject-matter of the so-called “certificates of origin” and in 2001 in relation to the right of minority self-governments to view and become acquainted with data.
Complaints in matters of data protection were received in considerable numbers again in 2002; indeed, judging by our inquiries, its appears that their number will increase in 2003. Before turning to a discussion of this subject area, we need to clarify some issues of authority and procedure. Several parliamentary commissioners (ombudsmen) function in the Republic of Hungary, two of which qualify as the so-called “specialised commissioners” and whose scope of function is restricted to well-definable area of constitutional rights. Thus, a clash of authority may occasionally occur between the “specialised ombudsmen”.
The parliamentary commissioners do not qualify as authorities, although their procedure doubtless demonstrates many similarities with some bodies of public administration, but their primary task is still – “by means of” various constitutional rights – to take a stand against “bureaucracy” in its negative sense and against other anomalies that may be referred to as the “by-products” of public administration (“maladministration”).
The institution, by its very nature, cannot permit conflicts of authority. Therefore, the handling of some complaints requires or assumes co-operation between the parliamentary commissioners. The various rights may, in practice, become caught up in an apparent or real contradiction, and sometimes they may become rivals of each other, a rivalry that can, however, be dissolved.
As a principal rule, or “when all is said and done”, it is the Constitutional Court that decides which constitutional law – in the “contest” of basic laws – has priority, for these rights may only be restricted with a view to the application of each other – based on the principles of necessity and proportion.
We may evaluate our co-operation with the data protection commissioner and his staff as particularly good, for there are complaints that cannot be classified, in an exact manner and according to the constitutional rights involved, under either “minority rights” or “data protection”. (Generally, one cannot expect petitioners to formulate their claims grouped separately according to the constitutional rights affected – as issues that concern either the data protection commissioner or the minority commissioner, for the simple reason that in some cases such a task would be plainly impossible.)
The officials and members of minority self-governments generally request assistance from the Parliamentary Commissioner for National and Ethnic Minority Rights, and since the conflicts of these peculiar bodies usually arise with local municipal governments or the “local manifestations” of public authority – the mayor or the notary public, they usually inquire about the matters regarding which they may ask for and receive information. As already noted, the minority self-governments exercise so-called rights of “joint decision” with the local municipal governments. Thus, as part of the decision-making process, a representative body of a minority self-government may declare in a resolution its agreement or its opinion on decisions of the local municipal government that affect the minority community. However, some of the legal provisions concerning the management of data were drafted in such a way that they ignore the special entitlements of the minority self-governments; thus, in a taxative manner, they determined the recipients of one of the elements of the process of data management – that is, the forwarding of data – with the minority self-governments excluded from the list.
The right of joint decision means, however, that a minority self-government – entitled to express its opinions and agreement – can only take a decision if it possesses the same information as the representative body that is entitled to take the “final decision”.
This group of cases, which we must doubtless call – in agreement with the data protection commissioner – anomalies, arose most frequently in connection with institutions of public education.
Parents as well as minority self-governments – which have both rights and duties in connection with the organisation of minority education – may formulate demands for information that is classified as personal data.
Due to an unfortunate and seemingly mistaken decision of the legislator, the so-called “supplementary state normative” for minority education is currently received by maintainers of institutions without any conditions on its use. It is possible to verify, with specific examples, that the normative is not being spent on minority educational tasks – despite the fact that claims for the subsidy are based on the provision of this task.
The minority self-governments have the right of agreement when local decisions are being made that concern the education of pupils belonging to the minority. In this matter, the minority self-governments would naturally like to know how the budgetary resources available under the title of “minority head-quota” – which clearly qualify as “public funds” – are to be used: specifically, how much is going to be spent on what?
This issue is particularly complicated in the field of wage and salary payments: in such cases, the names and qualifications of persons participating in the provision of minority tasks qualify as personal data.
Thus, in some cases, the information rights (the right of access to data and the right to view data) of minority self-governments can only be satisfied if there is an opportunity to become acquainted with the personal data of teachers and other natural persons participating in minority educational tasks.
In addition to the above, there is a need to clarify the borderline between data of public interest and personal data. The issues arising in practice and requiring an exact legal answer are the following:
• In the case of an institution of public education performing minority tasks, should the personal data of teachers or other contracted persons (study group leaders, minority educators) relating to their employment qualify as data of public interest – that is, data that may become known to “anyone”?
• Are minority self-governments entitled to know – in addition to the numbers of children taking part in minority education – the names of such children?
Our office is unable to take a position on the above issues because they do not merely concern minority rights but are also closely connected to the administration of the right to the protection of personal data guaranteed by Article 59 of the Constitution, as well as the declared right to knowledge of data of public interest as guaranteed by Article 61 of the Constitution. In connection with the problem presented and in line with our previous practice, we have requested the position of the data protection commissioner, in possession of which (probably in the first half of 2003) we shall begin work on the publication of a further joint statement or announcement.
2.
Data protection issues of minority education, or is there “registration” in
schools?
In institutions of public education carrying out minority education, conflicts still occur between parents, schools, the maintainers of institutions, and minority self-governments with rights of joint decision in issues of education.
The organisation of Roma minority education often causes misunderstandings, in the course of which anxieties arise that the Roma children are being unlawfully “registered” and that data obtained in such a manner is being used to establish segregated classes and study groups.
The following legal case illustrates the problem:
In connection with a parental request form for Roma minority education, formulated and duplicated by a school, a petition was submitted to the Parliamentary Commissioner for National and Ethnic Rights. The parental request form contained the following:
“I, the undersigned parent – whose child(ren) is (are) pupil(s) at ... Primary School – request the school head to provide separate Roma ethnic lessons to our children – having regard for their descent. Name of parent; place of residence; identification number; class(es) of child(ren).”
Having analysed the request form in terms of its legal and data protection aspects, the Parliamentary Commissioner arrived at the following position:
Section 43(4) of ARNEM states that “if so requested by the parents or legal representatives of at least eight school children belonging to one and the same minority, it is mandatory to organise and maintain a minority class or study group”.
Thus, it is the right of parents to initiate the organisation of minority education in schools. At the same time, under Section 46(1) of ARNEM, “local governments and local minority self-governments shall co-operate in surveying the demands for minority education and in the organisation of such education”. The appraisal of demand, therefore, is also the task of municipal governments as well as the schools that it maintains. The surveying of demand, however, entails finding out the number of interested parties, but not the specific recording of data.
If a school wishes to collect data of pupils registering for minority education at the same time as surveying demand, then it must apply jointly the rules of ARNEM and of the Data Protection Act.
When a parent states its request that its child should take part in minority education, it is expressing, at the same time and indirectly, its belonging to the given minority. Under Section 2 of the Data Protection Act, personal data relating to a person’s racial origins or his/her national or ethnic identity qualifies as specialised data.
Annex 2 of the Public Education Act entitled “personal and specialised data recorded and managed in institutions of public education” does not authorise the school to manage such specialised data, but at the same time, a request for minority education does qualify as an expression of identity, and therefore a parent may only make a statement voluntarily.
A statement made in such a way – given the lack of a separate legal authorisation – may be managed, because the request of the parent is to be interpreted as written consent to the management of specialised personal data.
According to the principle laid down in the Data Protection Act, in case of doubt a lack of consent to data management must be assumed. Therefore, particular attention should be paid to ensuring that the parent-initiators of minority (Roma) education are aware of the significance of their statements. Thus, one of the responsibilities of institutions of public education managing data is to inform parents sufficiently and thoroughly of the following:
• the provision of data is of a voluntary nature, but also a condition for participation in minority education,
• the aim of the provision of data, that is, that the data will be used exclusively for the purpose of organising Roma minority education,
• the persons who will manage the data,
• the data must be managed in confidence in accordance with the Data Protection Act: the data may not be made accessible to unauthorised persons, or shall be made available only in the case of an examination by a body entitled to control the legal organisation of Roma minority education, to such body,
• the data shall be destroyed if the children have completed the Roma minority programme and the five-year limitation period has run its course – during which time the State Audit Office may order an investigation.
The request for the introduction of minority education – which, according to the above, comprises a declaration of belonging to the minority – may only be considered a “voluntary statement” applying to the management of sensitive data, if the parent is actually aware that his/her request represents an authorisation relating to the management of data.
Thus, in addition to providing information about the data protection rules, the school will be proceeding legally when collecting requests for the organisation of minority education if, before doing so, it informs parents of the substantial issues of minority education.
Based on a ministerial directive on national and ethnic minority education (Decree No. 32/1997. MKM), parents must be informed of the subjects that their children are to study and for how many lessons per week, and of how the school is to organise such lessons. (Does the school wish to establish separate classes or will it merely break up groups for extra lessons? Of course, in terms of both teaching methods and sociology, it is better to organise Roma minority education within the framework of integrated education.)
Another issue that has arisen is whether or not parents must indeed make a statement about their own or their child’s “descent” or whether it is sufficient to formulate a demand for minority education.
Based on what has already been noted, it is quite clear that there is no requirement to have parents make a statement about their belonging to a minority (about their descent): if they – having received written information from the school concerning Roma minority education and the data protection rules – voluntarily request the organisation of Roma (or any other) minority education, then – by making such a statement – they shall have satisfied the provisions of both ARNEM and the Data Protection Act.
VIII.
The “big issues” receiving national attention
In this chapter, we shall present (a summary of) the issues that have caught the attention of the printed and electronic media during the past year and that have become known nationally. Perhaps readers will be interested to find out about the outcome of these issues.
We could, of course, describe several issues that we consider significant, but there are several obstacles to such an approach. When compiling our report, we must constantly bear in mind that our complainants are real “flesh and blood” people, whose personal rights we must respect fully. This is why in previous chapters we have presented the legal cases, having made them anonymous. Thus, the omission of specific personal data or the names of the municipalities primarily serves the interests of our clients. One of the genre peculiarities of the report of the Parliamentary Commissioner is that the main objective of this parliamentary and public document, which is accessible to anyone, is to hold a mirror in front of society and to present – by way of the practice of the Parliamentary Commissioner for National and Ethnic Minority Rights – the current situation of minority rights.
In the light of the fact that the matters to be presented in the following – thanks to the media – have already been publicised, the report also publishes, in the Annex, the original documents having relevance for an understanding of the various “legal cases”.
1.
Paks: an anomaly disguised in the semblance of legality
In the course of the Paks affair, we became aware of a completely new and unusual form of the so-called “constitutional anomaly”. The essence of the legal case, which is textbook material, may be summarised as follows.
There was a multiply disadvantaged Roma family living on welfare benefits without a regular source of income, whose property comprised the house in which the family lived. Due to the lack of regular maintenance, the residential house on the urban periphery – formerly a house with five apartments for agricultural workers – fell into a very bad state of repair, so that the residents feared that the roof would collapse upon them.
In order to preserve their housing possibility, the family turned to the municipal government, which counts as more wealthy than the average: a separate local government decree guarantees, in addition to the regular forms of social assistance, the possibility of winning subsidies for the renovation of houses and flats.
Based on the application of the residents, who were quite obviously in need of assistance, staff at the local municipal government requested the technical staff of the mayor’s office to examine on-site whether or not the house of the petitioner was in need of renovation.
In the course of their on-site investigation, the staff of the mayor’s office found that the request really did have good grounds, since the building had literally become a danger to the lives and physical well-being of its residents.
Having made this finding, there was, however, no examination of whether or not the petitioners could be assisted from local government resources. Instead, proceeding in accordance with the building legal provisions, the housing and construction authority declared the building to be a danger to life and determined the works that would be necessary in order to conserve the building and to avert the danger to life (supports, buttresses etc.).
Since, in such cases, the Act on the Protection of the Built Environment prescribes that in principle the owner should be obliged to prevent a danger to life, in a resolution of public administration the residents were obliged – with a deadline and the prospect of an executive fine – to carry out the necessary building works.
The anomalous nature of the situation speaks for itself: the wretched and desperate citizens, trusting in the assistance of the municipal government, became the victims of merciless bureaucracy, the unwitting clients – and obligors – in a public administrative procedure. The case continued in an almost entirely predictable manner: lacking financial resources, the obligors were unable to satisfy the authority’s order to renovate the building; the state of the building deteriorated further, and then – when the roof collapsed in a storm – the housing and construction authority ordered in a resolution that, “having determined the default of the former house for agricultural workers”, the building should be demolished.
The demolition of the building, which was situated in the protected zone surrounding the Paks Nuclear Power Plant , meant, of course, that suitable housing had to be found for the thirty people living there. The local municipal government could have supported a solution whereby the multiply disadvantaged Roma families would have been given residential property in the environs of Paks, that is, in nearby villages.
However, the “danger” of one of the said families moving to a nearby village – Németkér – led to a local residents’ protest and an unprecedented demonstration in the village. At this point, the peculiar Calvary of the Roma of Bedőtanya became known across the country and our office became aware of the matter. In the annex of this report, we publish in full our inquiry report, which contains details of our findings, including our correspondence with the notary public of the Municipality of Paks. The importance of the matter is indicated by the fact that the Parliamentary Committee on Human Rights, Minorities and Religious Affairs felt obliged to make its position clear in a public statement condemning the events in Paks and Németkér.
2.
A restriction on the constitutional right to choose one’s place of residence:
Németkér
A description of the events in Németkér is closely linked to the Paks issue, for some of the people suffering an infringement of their rights were the same in both cases.
We have dealt before with cases of infringement of the constitutional right associated with the free choice of place of residence.
It is a fact that in the practice of the Parliamentary Commissioner for National and Ethnic Minority Rights almost all complaints concern the infringement of the constitutional rights of people belonging to the Roma minority. Thus, in such cases, there is a need to examine whether ethnic discrimination has occurred.
The Németkér case is in many respects typical; by presenting this matter we can review both the causes of the phenomenon and the motivation of the “actors”.
What actually happened in Németkér in September 2002?
One of the families that had lost its housing at Bedőtanya, a suburb of Paks, purchased – with the co-operation of the minority self-government in Paks as well as the support of the municipal government – a property in the village of Németkér in the environs of Paks.
However, the move of the family of seven to Németker was thwarted by local residents, who – led by their elected representatives and the village mayor – began a mass demonstration, in the course of which – ignoring the presence of television cameras – they began to demolish the residential home that had become the property of the Roma family.
Prior to the demonstration, having learnt of the “danger” of the Roma family possibly moving to the village, the village mayor made personal visits to al owners of local properties that were for sale and informally “dissuaded” them from selling their properties to the Roma from Paks. In the case of one of these owners, the mayor’s endeavours were unsuccessful. Thus this was how the Roma family, based on a contract of purchase signed in the rooms of the mayor’s office in Paks, acquired the property in Németkér.
Faced with the demonstration and the acts of violence, the Roma family had no wish to take possession of the property, which had been rendered partially uninhabitable.
In the course of the inquiry held by the Parliamentary Commissioner, the following findings were made:
• On behalf of local inhabitants, the mayor of Németkér explained the demonstration in terms of a protest – quasi in “self-defence” – against the move to the village of a notorious family that allegedly followed a criminal lifestyle; the fact that the people concerned were Roma had played no role whatsoever in their demonstration.
• They also claimed – together with the leaders of other villages in the area – that they considered the procedure of the municipality of Paks to be outrageous, given that its clear intention was to free itself of inhabitants that were multiply disadvantaged and obviously a social burden, by helping them to buy properties in the surrounding area.
• They considered the conduct of the municipal government of Paks to be particularly anomalous, given that Paks was one of the wealthiest municipalities in the country, whereas the surrounding villages were far from being so “well-off”.
• A peculiar role was played by the Roma Minority Self-government in Németkér as well as its chairperson. The minority self-government “formed a kind of alliance” with the local municipal government and was similarly vociferous in its opposition to the possible move to Németkér of the Paks Roma.
Taking into consideration all the circumstances of the case, we concluded that ethnic discrimination had taken place and that the mayor of the village – who qualifies as a public official – had overstepped the authority of his office, had interfered in matters of private law, and had headed a demonstration that had led to the crime of violence against property, or criminal damage.
At the same time, we also had to condemn the conduct of the representative body of the municipality of Paks: in a legal and moral sense, one might have expected the town to provide housing within its own public administrative boundaries to the Roma families that had lost their property as a result of the unlawful procedure of the housing and construction authority.
Fear of people who follow a “criminal lifestyle” cannot serve as a legal or moral basis for restricting the constitutional right of citizens to freely choose their place of residence and to acquire property. The family of seven members had acquired property in Németkér and the exercise of their rights of ownership had been thwarted – unconstitutionally – by the inhabitants of Németkér.
The police began criminal proceedings against the Németkér inhabitants who had taken part in the “demolition” of the residential property on grounded suspicion of damage to property and unlawful entry.
In our view, by attempting to dissuade inhabitants of the village from selling their properties, the mayor had acted unlawfully and had committed the crime of abuse of authority. For this reason, we filed a complaint with the Prosecutor’s Office. Citing the absence of a crime, the Municipal Prosecutor’s Office of Szekszárd refused to investigate the case. Our complaint made against the resolution of the Prosecutor’s Office was rejected by the County Prosecutor’s Office of Tolna County.
We cannot further dispute whether the resolution of the Prosecutor’s Office was well founded. Nevertheless, the decision does send a message that unlawful acts in breach of the Constitution will remain unpunished, and that the value-judgement of the Prosecutor’s Office may lend the semblance of legality to other similar behaviour in the future. That is to say, it is quite possible that, with reference to the “rightful self-defence reflexes” of the population, the freedom of movement of undesirable persons will continue to be prevented.
3.
The “veterinary horse” of local government elections: Jászladány
The beginnings of the story go back to the year 2001 when the so-called “Jászladány school affair” received national attention. It should be recalled that the local municipal government – above all the mayor – tried to legalise the separation of Roma and non-Roma children at the local school by encouraging and supporting the establishment of a non-municipal private (foundation) school. Asserting its rights as provided for by law, the local minority self-government declined to give its agreement to a reduction in the conditions of operation of the primary school, which was operating in accordance with the Roma minority education programme: that is, it “vetoed” the local municipal government’s decision.
Our findings made in the course of the Parliamentary Commissioner’s inquiry into the matter met with the agreement of the head of the Office of Public Administration of Jász-Nagykun-Szolnok County as well as the Ministry of Education. Despite this, the local municipal government remained unyielding and refused to abrogate the unlawful resolutions that it had adopted in the matter of the foundation school.
The legal dispute may, however, be made superfluous – or be resolved for the future – by the fact that after the minority self-government elections of 2002 the representative body of the minority self-government was significantly “regenerated”.
The events amounted to an unprecedented abuse of the law: at the minority self-government elections, in a wilful and systematic manner, individuals who were self-declared non-members of the Roma minority put themselves forward as minority candidates and won seats on the representative body of the minority self-government. It is now easy for the municipal government to “reconcile” its anti-minority decisions with the new members of the body. The sad balance sheet is that, currently, four of the five members of the representative body are non-Roma – including the wife of the mayor, who had become notorious for his antipathy towards Roma. Thus, although on paper the minority self-government exists and is operating, in practice it has become functionless and incapable of properly representing the interests of the minority.
Since the minority self-government elections in Jászladány, it has become abundantly clear that in the field of minority rights the need is not just for electoral reform but also for a fundamental change of approach. As we have noted thoroughly in earlier chapters of this report, the essence of this change would be the drawing up of minority electoral registers and the establishment of furthers guarantees ensuring that the minority communities are able to elect their representatives themselves, that is, that we should finally recognise that they are the real and exclusive recipients of the right of the minorities to self-governance.
Budapest, March 2003
Dr. Jenő Kaltenbach
IX.
I. Breakdown of documents generated in year 2002, by submitter
|
Individual submissions |
263 |
|
Minority self-government |
71 |
|
Civil Organisation |
15 |
|
Central state organs |
66 |
|
Municipal governments |
9 |
|
Ex officio investigation |
28 |
|
Other |
16 |
|
Total |
468 |
II. Proceedings launched based on documents generated in year 2002
|
Start of investigation based on submission |
356 |
|
Ex officio investigation |
28 |
|
Information |
3 |
|
Position statement |
36 |
|
Other |
45 |
|
Total |
468 |
III. Minorities involved in the cases
|
Roma |
274 |
|
Bulgarian |
1 |
|
Greek |
1 |
|
Croatian |
5 |
|
Polish |
|
|
German |
31 |
|
Armenian |
6 |
|
Romanian |
5 |
|
Ruthene |
2 |
|
Serbian |
3 |
|
Slovak |
15 |
|
Slovene |
|
|
Ukrainian |
|
|
Complainant not falling under the scope of the Nekt. |
79 |
|
Case involving several or all minorities |
46 |
|
Total |
468 |
IV. Regional distribution
|
Baranya |
|
Bács-Kiskun |
|
Békés |
|
Borsod-Abaúj-Zemplén |
|
Csongrád |
|
Fejér |
|
Győr-Moson-Sopron |
|
Heves |
|
Hajdú-Bihar |
|
Komárom-Esztergom |
|
Nógrád |
|
Pest |
|
Somogy |
|
Szabolcs-Szatmár-Bereg |
|
Jász-Nagykun-Szolnok |
|
Tolna |
|
Vas |
|
Veszprém |
|
Zala |
|
Budapest |
|
Complaints not relating to any specific region |
|
Total |
V.
|
Company-supplier of electricity or water |
2 |
|
The court of justice |
20 |
|
Law enforcement institution |
9 |
|
Institution of Healthcare |
2 |
|
Consumer Protection Supervision |
1 |
|
Organ of Family and Child-care |
6 |
|
Border-Guards |
1 |
|
Minority self-government |
12 |
|
The media |
12 |
|
Ministry, organ with national competence |
10 |
|
Educational institution |
10 |
|
Hungarian Electoral Commission |
6 |
|
Bank |
9 |
|
Police organ |
29 |
|
The Social security self-government and pensions office |
3 |
|
Local government |
103 |
|
Attorney's Office |
5 |
|
Enterprise |
3 |
|
Customs and Finance Police |
2 |
|
Other* |
224 |
|
Total** |
469 |
*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
** Egy ügyben több szerv is lehet érintett.
VI.Total number of reccommendations and initiations
|
Initiation |
49 |
|
Reccommendation |
9 |
|
legislative proposal |
22 |
|
Initiation accepted |
29 |
|
Reccomendation accepted |
2 |
|
Legislative proposal accepted |
5 |
VII. Organs affected by the reccommendations, initiations, legislative proposal
|
Local government |
23 |
|
Ministry of Education |
1 |
|
Ministry of Internal Affairs |
5 |
|
Ministry of Justice |
1 |
|
Public Administration Office |
5 |
|
Hungarian Electoral Commission |
2 |
|
Parliamentary Commission |
3 |
|
Ministry of the Prime Minister |
3 |
|
Police |
5 |
|
University |
14 |
|
Media |
12 |
|
Office of Nuclear Energy |
1 |
|
State Service on Public Healthcare |
1 |
|
Attorny's Office |
1 |
|
Consumer Protection Supervision |
2 |
|
Central Office of Customs and Finance Police |
1 |
|
Total |
80 |
VIII. Measures taken after investigations*
|
Information |
99 |
|
Official position |
94 |
|
Mediation |
1 |
|
Remittal |
39 |
|
Refused without investigation (outside scope of competence) |
14 |
|
Dismissed after investigation |
32 |
|
Call for investigation by other organ |
6 |
|
Reccommendation, initiation, legislative proposal |
80 |
|
Impeachment |
6 |
|
Other |
39 |
|
Pending |
73 |
|
Total |
483 |
*In one case more than one measure could have been taken.
