Introduction
2003 in general through the eyes of the ombudsman for minorities
This time, slightly departing from the established practice, we must start our annual report with figures. That is because last year the number of complaints we received increased significantly, by more than 40% over the previous year. This is a welcome development in one sense, because it is attributable to a large extent to the radical increase in the number of draft legal regulations forwarded to us for comments by the central administration entities, primarily by ministries; the increase exceeded 100% (66 in 2002, 142 in 2003). This is laudable even if the relevant practice of the various central authorities is rather uneven. Some ministries forward draft legislation indiscriminately, while others occasionally fail to send even the ones relating to our mandate. What happens to the ombudsman’s response is another issue, i.e., whether a dialogue is started about the issue or whether our position disappears in the “mills” of interministerial circulation even if it contains substantive constitutionality concerns. For instance, in case of the drafts of the bill on the minority elective suffrage, a version which we had found to contain constitutional anomalies was subjected to interministerial discussion. The party submitting the draft merely stated that the minorities ombudsman had “commented” on the draft.
As a far from welcome development, the increase in the number of complaints is a general tendency even apart from the aforementioned indicator, as it is also reflected in all other indicators. There was no notable change in the composition of complaints. Even though the ratio of Roma complainants declined slightly (due to the increase in the number of total complaints), the increase in absolute terms was the greatest in their case, going from 174 to 372. The authorities affected by the complaints have also remained the same. The “leader” is still the local government, though it is worth noting, especially in light of the memorable controversies that emerged on the subject, that complaints about the administration of justice more than doubled (from 25 to 55), bringing that area to second place.
Eventually, our debate, which had stirred a storm, was concluded with positive results, not only in respect of the future relationship of the two constitutional institutions but also as it contributed to the clarification of certain controversial issues relating to the operation of the system of institutions of the rule of law.
Last year the European Commission against Racism and Intolerance of the Council of Europe (ECRI) commenced the third round of the “country reports” on Member States. The report on Hungary was completed and will soon be finalised. In the course of this third round, the Commission examines primarily whether the recommendations and proposals made in the 2nd round reports issued a few years ago have been enforced in the legal system and legal practice of the country concerned.
In this context it appears reasonable to take account of the main recommendations and proposals to review whether measures for compliance have been taken.
The commission requested us to monitor the operation of the system of minority self-governments and to take measures to redress deficiencies such as problems of legitimacy, the inadequacy of financing, the difficulties of the relationship of municipal governments and minority self-governments. At this point we should mention another expectation of the commission relating to the reinforcement of the linguistic and cultural autonomy, language use and media of minorities. In our report we shall discuss in detail the measures, existing as drafts at this point, which serve the above purpose, noting that the implementation of the recommendations, made approximately five years ago, is a pressing necessity, and we request Parliament to take measures without any further delay.
In the field of criminal law, the commission expected us to assure that the system of criminal sanctions is improved, including the introduction of appropriate penalties for so-called hate speech. This objective was attained after protracted debates, but only the legal practice of the future (and, importantly, the decision of the Constitutional Court) will determine how the expectation of the commission urging the consistent enforcement of these criminal law standards is put into practice. To promote this, the commission recommends the training of policemen, prosecutors and judges in this field.
The chapter of the previous report on civil and administrative law provisions contained the recommendation that a so-called anti-discrimination act is adopted, containing all the requirements that can be considered as European standards (EU Directive 43/2000, general policy recommendations 2 and 7 of ECRI). The Act on Equal Treatment and the Promotion of Equal Opportunities, which was adopted last year, more or less meets this expectation, but in respect of another commission recommendation relating to the special authority it does not offer an adequate solution. The detailed description of our critique of the law and our efforts during the drafting process, unfortunately mostly futile, towards a regulation that in our view would take better account of the real situation is incorporated in the report.
The 2nd round country report devotes a separate chapter to the position of the Roma community. Having established that they are discriminated against in the fields of public services, housing, employment, health care and especially education, it initiated a number of measures to improve this situation.
Even though there have been measures promising positive changes in the above fields, their real effects are only beginning to emerge, and in some sectors (such as housing) only plans have been prepared as yet.
Finally, we must separately mention the acceptance of the measures taken by the ombudsman. We regret to find that the reception of our initiatives, recommendations and legislative proposals still gives rise to concern. Even though there are a number of positive examples to the contrary, the response of the relevant authorities is often not only delayed but also unreceptive and resentful. Such uncalled-for emotional response to a document produced in the course of an administrative procedure may have the long-term effect of undermining the prestige of the institution and, eventually, of Parliament. This was the first time in the close to nine years of history of our office that the representative of an institution condemned in an issue giving rise to a national scandal not only refused to accept the recommendation of the ombudsman but also put forward the absurd accusation that the portion of the ombudsman’s report, as accepted by Parliament, which affects him constituted a criminal act.
Introduction
2003 in general through the eyes of the
ombudsman for minorities
I.
The general position of minority rights on the threshold of EU accession
1. Measures for the long overdue comprehensive amendment of
minorities legislation
2. The reform
of the minority elective franchise: description of a national controversy
II.
Minority rights in practice
1. The diverse responsibilities of local governments
1.1. Introduction, legal background
1.2. Our enquiry in Gyõr-Moson-Sopron County
1.2.1. Operating
conditions of minority self-governments
1.2.2.
Co-operation of the minority and local governments
1.2.3. Revenues of the minority
self-governments
1.2.4.
Activities of the minority self-governments
1.2.5.
Education
1.2.6.
Use of the mother tongue
1.2.7.
Summary
1.3.
Conflicts emerging between the minority and local governments because of the
lack of dialogue
1.4.
Tasks of the minority self-government in employment – a new dimension of
minority rights
2.
Minority media
3.
Informal participation of the parliamentary commissioner in the work of
legislation: assessment of our involvement in the preparation of legislation
4.
A practical example for the possible, or actual, justification of the opinion
of the ombudsman in the legislative process
III.
Theoretical and practical limits of the
free expression of opinion – interpretation of the scope of authority of the
parliamentary commissioner
1.
On the regulatory powers of the ombudsman
2.
Possibilities of the expression of the ombudsman’s opinion respecting the work
of judicature
3.
Prejudice in the media
IV.
The general position of equality
1.
Clarification of legal terms relating to non-discrimination
2.
Segregation, a special form of discrimination
2.1.
Adverse discrimination in education – the segregating practice or setting up
and operating ‘small classes’
2.2.
Private pupil status as a potential source of segregation
2.3.
Other forms of reprisal in public education
2.4.
Recording the Roma origin of students in the class register
V.
Maladministration: typical cases of
insensitive bureaucratic law enforcement
1. Anomalies
of contacts with „official authorities”
2.
Enforcement of children’s rights in the practice of local governments
Problems with
the system of the child welfare service to identify and signal danger
The problem
of the voluntary nature of maintaining contact with the child welfare service
“Confusion of
identity” of the child welfare service
Local
governments as key actors in the child protection system
A special
problem relating to the regular child protection benefit
3. Complaints
relating to penal institutions and the police
Complaints
against penal institutions
Complaints
against police procedure
4. Are estate
debts and liabilities a burden only for the poor? An old problem in new guise
VI.
Chapter VI.
Chapter I
The general
position of minority rights
on the threshold of EU accession
1. Measures for the long overdue comprehensive amendment of minorities legislation
This year’s report has special significance as the Government is expected to submit to Parliament, at its spring session, the bills on the amendment of Act LXXVII of 1993 on the Rights of National and Ethnic Minorities (ARNEM) and on the election of minority self-government representatives. The report allows us to explain our position on topical issues of the review of minority legislation and thereby to assist Members of Parliament in their decision making.
To help Parliament make an informed decision on the legislative texts, we need to review the key stages of the codification process as well.
We published our recommendations for the comprehensive review of the provisions governing electoral franchise following the minority self-government elections of 2002-2003. The anomalies disclosed during our enquiry made it clear to political decision makers that the amendment of minority legislation cannot be postponed any further. The majority of our recommendations were received favourably by Parliament, the Government and the national minority self-governments. They all agreed that such rules need to be adopted which assure that only candidates belonging to the represented community may run at the minority self-government elections. Furthermore, they also supported our recommendation for the termination of the elector system and the one relating to the need to regulate the legal status of minority self-government representatives, in particular cases of conflict of interest. However, we also noticed that many were afraid of a register for minority voting rights. In order to dispel those concerns, in the first half of 2003 we visited the general assemblies of almost every national minority self-government and expressed our views concerning the need for a franchise reform. It may be partly because of our arguments that today six national self-governments, representing over 90% of the total numbers of minorities in Hungary, agree with the introduction of a minority electoral register to guarantee the exercise of active and passive voting rights in a constitutional framework.
We should not conceal the fact, however, that the Ministry of Interior, which is responsible for the preparation of electoral regulations, failed to respond to two of our recommendations. Despite our request, the ministry did not examine whether it was justified to set the limit for the application of the rules of the “small list” election system at settlements of 10,000 inhabitants. During the discussions ongoing simultaneously with the preparation of the report the only promise made was to come back to this issue later, in the context of the franchise reform. Our recommendation relating to the expansion of the right to legal remedy was also met with no response. We also found an anomaly in the absence of legal regulations that would guarantee that the parties entitled to legal remedy should be able to learn about the decisions of the electoral committee within the time limit available for the filing of protests. The Constitutional Court underpinned the validity of our finding when stating, in its decision no. 59/2003. (XI.26.) AB: “an unconstitutional situation emerged because Parliament failed to establish the procedural guarantees of the disclosure regulated in Section 798 (2) of Act C of 1997 on the Election Procedure, thereby failing to assure the conditions for enforcing the right to legal remedy within the time limit specified in Section 78 (1)”. If the Ministry of Interior had looked into the substance of the problem we identified and our recommendation for its resolution, the Constitutional Court would not have had to call on Parliament to terminate the unconstitutionality caused by omission.
Codification efforts on the minority legislation started in February 2003, with the elaboration of a government concept. In order to accelerate the process, Parliament, in its Resolution No. 30/2003. (III. 27.) Ogy., called on the Government to review the ARNEM and the substantive and procedural rules of the election of minority self-governments, and to submit the necessary legislative amendments by 31 December 2003. Legislative preparation was started in May 2003, with the co-ordination of the Office of National and Ethnic Minorities. The representatives of ministries, the office of the commissioner for minorities and the experts of the national minority self-governments attended the meetings. There were several discussions held with the Human Rights, Minorities and Religious Affairs Committee of Parliament as well.
We assisted the drafting of the bill by elaborating recommendations and commenting on the draft legislations. It became obvious right at the start that the greatest differences existed in the field of the elective franchise rather than in connection with the ARNEM. As the parties representing both opposing views claimed constitutionality considerations, it appeared expedient for the Constitutional Court to have the final word in the dispute. To this end, in September 2003 we filed a motion requesting the annulment of certain provisions of Act LXIV of 1990 on the Election of Local Government Representatives and Mayors (Local Elections Act), the establishment of the existence of a constitutional infringement through omission and the interpretation of the Constitution.
The right to self-governance is the constitutional basis of the institutional system for the protection of the autonomy of minorities. Self-governance is a fundamental requirement of the minority governance systems, i.e. that the community concerned should set up the body representing it. The contested provisions of the Local Elections Act provide the possibility also for voters not belonging to the minority concerned to vote and to run as candidates at the minority self-government elections. In our view, these provisions may violate the principle of the rule of law, which is enshrined in Section 2 (1) of the Constitution. The right to participate in the minority self-government elections is not a right generally accruing to Hungarian citizens; instead, in the constitutional framework it only facilitates the special involvement under public law of minority communities and their members. In our opinion the minority self-government system based on the general franchise also hinders the enforcement of the fundamental rights of minorities as laid down in Section 68 (1)-(4) of the Constitution.
According to the effective regulations, minority self-government elections may be validly held only in settlements where at least five members of the minority community have requested this. The persons initiating such elections must declare that they consider themselves members of the minority concerned. Failing that, the initiative is considered invalid. In our opinion, it may be deemed the infringement of the Constitution by omission that the legislator failed to adopt rules based on which initiatives of voters who do not belong to the minority community could be rejected if they do not satisfy the conditions laid down in the Local Elections Act.
Furthermore, we initiated the combined interpretation of Section 59 (1) and Section 68 (4) of the Constitution to establish whether the solicitation of statements from voters in the course of the election procedure can be considered as the unavoidable, proportionate and necessary constitutional limitation of the right to the protection of personal data, and whether the state (election committee, court) may verify the contents of such statements within the constraints set forth in an Act.
In view of the ongoing work on the re-regulation of the ARNEM, as well as the significance of the issue, we requested the Constitutional Court to assess these motions under an urgent procedure. We hope that their ruling will be adopted before the approval of the act on minority franchise, and that it will set the possible directions of legislation. This would be all the more pressing as at the time of preparing this report we are not yet aware of the Government’s position on the rules of the election of minority self-government representatives. We consider some of the drafts prepared so far appropriate to be submitted for parliamentary discussion; however, there is also a version which, in our opinion, would violate constitutional rights. We will address the issue of the minority franchise in a separate section, therefore at this point we only wish to state that we do not consider such a regulation constitutional which fails to empower the various minority communities to defend themselves against voters coming from outside their community and intending to interfere in the election process.
Because of the disagreements relating to the election system, emphasis was shifted to these issues in the past months, less attention being given to the reform of the regulatory system of the ARNEM. In all probability this is why the draft bill satisfies expectations only partially. The original objective of the codification efforts was to make the minority self-government system capable of independently handling issues in the scope of cultural autonomy. The draft bill, however, merely talks about the possibility of transferring tasks and competences, therefore additional safeguards would need to be incorporated to reinforce, or we might say, to establish, the role of minority self-governments in rendering public services.
Unfortunately, simultaneously with the drafting of the legal text, no specific government plans were devised for the reform of the financing of the system of minority self-governments. In our view it is impossible to sustain a regulatory system where minority self-governments receive the same amount of budgetary transfers irrespective of their activities, the tasks they intend to take onto themselves and the size of the community they represent.
The draft bill keeps the arrangement whereby the local governments assure the operating conditions for minority self-governments. This regulation portends a scenario where a significant part of these bodies will still be unable to participate as equal partners in the decision making processes of local governments. It is to be feared that the vulnerable minority self-governments will continue to be unable to exercise the powers they theoretically have, because if they confront local governments, the result may be the withdrawal or limitation of their operating facilities.
In the course of the discussions between the four parliamentary parties the need was expressed for the legislative amendment to extend the personal scope of the ARNEM to citizens of EU Member States with permanent residence in Hungary. At present the ARNEM assures the legal status of national or ethnic minority to those communities which have resided in Hungary for at least a century, that is, it provides protection exclusively to tradition and minority cultures in Hungary. In contrast, the identity of EU citizens is clearly linked to the culture and traditions of their own fatherland, therefore the extension of the personal scope would be possible only if the legislator were to put through the necessary changes in the entire regulatory system of the ARNEM.
We consider the protection of the rights of minority self-governments inadequate in the draft bill. The legislative text put forth the possibility, rather than the obligation, for the public administration office to take action against any decisions of the local government adopted disregarding the right of the minority self-government to be consulted. The Government must provide for the compliance supervision of local governments, which constitutional principle would be enforced only if the public administration offices would not have any discretionary powers to assess considerations of expediency or other, but they would have an obligation to take action. We consider it necessary to state the obligation to take action in the Act also because minority self-governments have no administrative apparatus of their own, thus for most of them it would be impossible to take independent legal action.
It is a fundamental question in the reform of the minority self-government system whether the establishment of a regional level would be necessary. Minorities with communities speaking the language and fostering traditions mostly located in the country consider it discriminative that while a minority self-government can be set up in the capital city, the same possibility is not there in the counties. Up till now the local minority self-governments have tried to make up for the missing regional level by establishing county-level organisations or associations. The draft bill allows for the establishment of regional minority self-governments. Nevertheless, we find lacking the independent powers that would justify the establishment of county-level governments. This is because if a certain number of local minority self-governments are elected, county-level bodies can be set up effectively automatically, irrespective of the existence of any responsibility for them to perform in their term of four years.
Despite our critical remarks, we see a possibility for the adoption of the long overdue amendment of the ARNEM this year[1]. Even in this present form the draft bill would be capable of addressing a substantial part of the anomalies described in our previous reports: it assists law enforcement with detailed interpretative provisions, it defines the fundamental rules of corporate operation, it resolves the legal status of minority self-government representatives. These days law enforcement is significantly hindered by the deficiencies in the provisions governing minority self-governments, therefore rules “tailored” to local governments must be adopted. The drafters of the bill strived to regulate independently as many issues as possible, thereby leaving only a narrow scope for analogy. The adoption of the Act would clearly reduce the legal uncertainty that still prevails in the minority legislation despite its history of more than ten years.
As codification work is not yet completed, we cannot endeavour in this report to provide a detailed analysis of the draft texts known to us. In the past weeks we found that even conceptual elements tend to be modified in between two discussions. Naturally, we are ready to elaborate on our position in the course of the parliamentary debate of the draft bills when submitted.
2. The reform of the minority elective franchise: description of a national controversy
Following the adoption of the ARNEM, minority self-government elections were held for the first time concurrently with the general local government elections of 1994. Because of the novelty of the institution, the legislator made it possible to hold minority self-government elections again in the subsequent year, i.e., in 1995. However, the by-elections did not live up to expectations because of the low turnout. Therefore this institution was abolished in 1999. Simultaneously, Parliament allowed for the holding of interim minority self-government elections in addition to the general elections.
As it is known, the latest general elections were held in 2002, thus we can summarise in this report the experiences of four minority self-government elections in total so as to point out the necessity or, indeed, the unavoidability of a franchise reform.
Let us see the facts. In the period of 1994-2002, the number of minority self-governments doubled, which is attributable to several reasons, but certainly not to a major shift in the demographic composition of the population that would have resulted in an increase in the numbers of citizens belonging to national or ethnic minority communities in the legal sense as compared to the numbers of the “majority society”.
The causes of the change certainly include the minority communities becoming more self-aware and “political”: they want to make better use of the possibilities in the minority self-government system to express their interests, as this is a public law institution vested by law with a number of powers to facilitate their interest representation function. (Minority self-governments are entitled to a broad range of interpellation rights and in theory they also have the possibility to participate substantively in the administration of local public issues, and in adopting local government decisions affecting their communities.)
In addition to increased political activity, we can also legitimately mention tangible financial interests, as the central budget provides financial grants to minority self-government without differentiation, i.e., irrespective of the actual activities, by virtue of their mere existence. These transfers have the legally defined objective of assuring the operating conditions of the representative bodies of minority self-governments, and in this respect the size of the settlement and of the minority community represented is also immaterial. The experiences of recent years indicate that the budget is not overly free-handed with minority self-governments, as a relatively modest sum – in excess of HUF 600,000 – is available for minority self-governments, but this is “sure cash”, which the representative body is free to decide in its annual budget resolution how to spend.
For our reasoning it is also worth noting that a national census was taken before the elections of 2002 in Hungary, in the framework of which citizens could anonymously and voluntarily declare whether they had any minority affiliation and whether they used the mother tongue of any national or ethnic minority in daily life.
The comparison of the results of the census and of the minority self-government elections yields a surprising result: minority self-governments were founded in a number of settlements and regions where no one declared to have minority identities, thus they represent no minority community according to the evidence, but their legality could not, and still cannot, be brought into question.
Thus it is a legitimate suspicion that the formation of such “pseudo-minority” governments was due entirely to financial reasons, i.e., to gain the budget transfers automatically “accruing” to such governments. This phenomenon may give rise to the suspicion of abuse, which can occur if the conditions outlined below are met.
Firstly, five citizens with voting rights and confessing to belonging to the same minority are required, who initiate the holding of minority self-government elections; secondly, depending on the number of inhabitants in the settlement, a certain number of citizens are needed who declare to undertake to represent a certain minority, and to this end are willing to collect the small number of candidacy slips required by law.[2]
There may be much more extreme examples of abuse: when the establishment of a minority self-government is not motivated by simple financial interest but the objective is to deprive a certain existing minority community of exercising their rights to self-governance. A regrettable example of the latter occurred in the latest minority self-government election in Jászladány, where candidates who do not consider themselves Gypsies “undertook” to represent the Roma minority: four non-Roma representatives were elected into the representative body of five persons, through the will of the majority inhabitants of the settlement.
The absurdity of the resulting situation is self-evident, and so is the conclusion: in its present state, the minority self-government system is taken less and less seriously, and the obvious abuses question the constitutional foundations of minority rights.
What can be a possible solution, or can the objectives defined by Parliament in the Constitution, then in the Minorities Act adopted ten years ago, be attained?
The question can be answered in the affirmative only if the fundamental reform of the rules of minority franchise is implemented. Why is that reform necessary, and what main criteria must it satisfy?
At the request of the Minister in charge of the Prime Minster’s Office and the President of the Office of National and Ethnic Minorities, we participated in the preparation of the minority franchise reform and in the administrative discussions necessarily entailed in codification.[3] In the course of the interministerial co-ordination controversies arose around a number of issues, partly between government agencies – the various units of the PMO, the Ministry of Justice and the Interior Ministry – and partly between the aforementioned government agencies and offices. In the course of the discussions, we put forth the following “expectations” regarding the franchise reform:
1. Act LXI of 2002 amended Section 70 of the Constitution of the Republic of Hungary, which lays down the universality of suffrage. As a result of the constitutional amendment entering into force upon our accession to the European Union, a legislative compulsion arose. As of that date, the reform of minority self-government suffrage rules becomes inevitable. We must assure that the various national and ethnic minority communities themselves can set up their governments, that is, the possibility of persons not belonging to the given minority exercising their active or passive voting rights must be excluded.
2. The above objective can be attained technically if the members of a minority can have themselves registered voluntarily, out of their free will if they want to exercise their collective right to self-governance which the community is entitled to. The preparation of an electoral register may affect the constitutional right to the protection of personal data as set forth in Section 59 of the Constitution, but this would occur in order to assure the enforcement of another constitutional right. This other constitutional right is enshrined in Section 68 (4) of the Constitution, and is to be construed as the collective right of national and ethnic minorities to local and national self-governance.
3. The above arrangement is constitutional as it satisfies the “necessity-proportionality” test set up by the Constitutional Court: one constitutional right is curtailed in order to enforce another constitutional right in such a manner that the curtailed fundamental right – the right to the protection of personal data as defined in Section 59 of the Constitution – retains its material content, as the limitation is voluntarily accepted by voters and is limited in time and purpose.
4. “Registration”[4] means a peculiar type of data management in the course of which the data management rules and principles laid down in Act LXIII of 1992 on the Protection of Personal Data and the Publicity of Data of Public Relevance (Data Protection At) can be complied with without any problem. For instance, the compilation of the register would serve the exclusive purpose of the implementation of the minority self-government election; therefore, pursuant to the principle of purpose-orientation, it could not be used for any other purpose. Its compilation would be arranged by the various national minority self-governments; therefore any abuse is practically impossible.
5. No arrangement is acceptable which would allow for anyone to be entered into the electoral register of a certain minority without any control. We should not deprive the various communities of the possibility to dispute the identity of persons clearly not belonging to their community. The effective Minorities Act sets relatively exact criteria for belonging to a minority (common culture, traditions, language, sense of belonging, etc.), therefore it is reasonable to expect that the voters entered into the minority electoral register satisfy at least some of these criteria – at least three according to the consensus reached by the national self-governments – or can prove their minority identity in a manner acceptable to everyone within the community concerned.
6. The introduction of the minority register appears inevitable also because this would satisfy the requirements of the Framework Convention of the Council of Europe for the Protection of National Minorities, which clearly states that membership of a minority community must be based not only on discretionary decision but also on objective criteria (language, culture, traditions etc.).[5] Thus the choice of words is very important: the choice of identity or, in other words, the freedom to choose identity in itself makes no sense, we can only talk about the freedom to embrace and express an existing identity. In contrast, the freedom of the individual as manifested in its choice consists in the sovereign decision whether he wishes to make use of the special powers relating to his identity, as specified in law, or of the right to be treated simply as one citizen of society, i.e., not as a person belonging to a certain minority.
For the sake of completeness we should mention that the national self-government of not all Hungarian minorities agreed with the introduction of the register, but the proposal is supported by the minorities constituting over 90% of the national and ethnic minority population of Hungary in total.
It gives reason for confidence that the adoption of the minority franchise act and the legal regulations for the amendment of the ARNEM are included in the legislative programme of the Government for the first half of 2004. (Even though the drafts of the aforementioned legal regulations have not been officially set to us for comments, the documents submitted to the meeting of the permanent secretaries have been made available to us for information.)
[1] Regrettably, the issue of the representation of minorities in Parliament was not even raised in the course of the preparation of legislation. Drawing close to the half-time of the election term, we see no sign of any substantive steps being taken to eliminate the constitutional violation by omission. Therefore we need to raise our voice in the report as well against the phenomenon that political decision makers make no attempt to solve this problem, which they have been postponing for over ten years.
[2] The persons initiating the elections and the persons undertaking to be candidates may be the same.
[3] The primary government responsibility for the implementation of elections and for the creation of legal regulations relating to elections lies with the Ministry of Interior, therefore the proposed legal text, which was the basis of discussions, was prepared by the staff of the National Election Bureau of the Ministry of Interior.
[4] There is “registration” for the local government elections as well; indeed, Hungarian citizens of age need not consent to the management of their personal data, and no voluntariness is required: the register of voters is compiled and – totally unnecessarily – published by virtue of a legal requirement even if the voter does not intend to exercise his voting rights.
[5] According to the requirements of the Framework Convention, persons belonging to a minority community, and the word ‘belonging’ must be especially emphasised, have discretionary powers to decide whether they will effectively participate in the life of the minority community or to expect society to not treat him as a member of a minority.
Chapter II
Minority rights in practice
1. The diverse responsibilities of local governments
1.1. Introduction, legal background
The basic tasks of local governments include the discharge of local public tasks, in particular the creation of the conditions necessary for public services and the provision of public services for the local population. According to Section 8 (4) of the Local Government Act: „Local governments shall provide for healthy drinking water supply, kindergarten education, elementary school education, basic health and social services, public lighting, the maintenance of local public roads and of the public cemetery; they shall assure the enforcement of the rights of national and ethnic minorities.”
The quote from the Act shows that the protection of national and ethnic minority rights is expressed in rather general terms and in the listing – which does not constitute an order of importance – it is the last item.
“Assuring the rights of national and ethnic minorities”, however, imposes a much more complex task on the local governments than the shallow observer would think as minority rights affect and pervade almost all the general core tasks of local governments. Minority rights are present, for instance, in public education, in the local tasks of public safety, employment, housing management and they may even arise in areas such as the installation of public utilities in the settlement in compliance with the requirement of equal treatment.[6]
In the absence of personal and material resources, we are unable to conduct national surveys. However, following on the examples of previous years, we found opportunities in 2003 as well to look at some regions of the country on a random basis. This year we visited Gyõr-Moson-Sopron County, or rather, some settlements of that region with the purpose of personally looking into the activities of local governments (and other authorities), in particular to find out how and at what standards they perform their tasks of assuring the enforcement of minority rights as stated in Section 8 of the Local Government Act. Below we describe the position of this uniquely placed Western Hungarian county.
1.2. Our enquiry in Gyõr-Moson-Sopron County
In 2002 we examined the enforcement of minority rights in Baranya and Szabolcs-Szatmár-Bereg Counties based on the experiences of the operation and activities of minority self-governments. In view of the outstanding importance and topicality of the issue, we continued the investigation into that matter in 2003.
The staff of the minority ombudsman visited the presidents and representatives of minority self-governments, the mayors and town clerks of local governments, the civil servants of mayor’s offices and the heads and staff of minority educational institutions in three locations, on a total of six occasions, in Gyõr-Moson-Sopron County in September and October 2003.
We looked into the operation of 11 minority self-governments (3 German, 3 Gipsy, 2 Croatian, 1 Bulgarian, 1 Greek and 1 Slovenian) and the activities of 8 national minority educational institutions. In view of the composition of the population in the region, we concentrated on problems of national minorities.
In the course of our enquiry, we compared the circumstances and operating conditions of minority self-governments and educational institutions located in settlements of various sizes (community of 2200 inhabitants, town of 32,000 inhabitants and town of 56,000 inhabitants).
The primary purpose of our survey conducted in the spring of 2002 had been to summarise in the ombudsman’s report the problems and conflicts arising in the course of the enforcement of minority rights. In our report and in the recommendations for legislation and our initiatives we highlighted the deficiencies and contradictions present in legal regulations.
In our enquiry of 2003 we wished to find out to what extent and in what manner the provisions of the ARNEM are implemented, and what difficulties and conflicts hinder their practical enforcement. We paid special emphasis to the examination of the role and activities of local governments, that is, how local governments assure at the local level the enforcement of the rights of national and ethnic minorities.
In the case of the enquiry in Gyõr-Moson-Sopron County, our primary objective was not to write a report but to establish personal contacts with the beneficiaries and obligees of minority rights.
We were able to find out about their problems, achievements and everyday lives. The informal nature of discussions, which were not strictly based on predefined questionnaires, allowed our interviewees to as questions as well, and we could clarify legal problems they encountered during their work.
To conclude the enquiry, we organised a forum in October with the participation of the heads of the local governments and minority self-governments of the settlements covered by the enquiry. We also invited to the event the presidents of the other minority self-governments of the county and leaders of local governments in the settlements concerned. The necessity of the forum was underpinned by the extremely high turnout.
It should be emphasised that the findings of our enquiry do not lend themselves to general conclusions concerning the entire county. Our summary is more a selection of examples, it is relevant for the three settlements visited, thus it also contains subjective views and comments.
Findings of the enquiry
1.2.1. Operating conditions of minority self-governments
Legal regulations clearly state that the material and technical conditions, professional assistance necessary for the operation of minority self-governments must be assured by local governments. However, the degree to which they are obliged to provide those conditions is a constant interpretation problem.
Use of premises
One of the key prerequisites of the effective, independent operation of minority self-governments is to posses their own separate office or to have the use of an appropriate room. When compiling our examination plan we assumed that in a county in Western Hungary no problems would be encountered in that area.
We had to face the fact, however, that the local governments visited were unable to provide independent premises to each minority self-government.
We encountered different problems in the settlements of different sizes.
In the small community, only the Gipsy minority self-government has an independent room. The German self-government requires neither premises nor other assistance for their operation from the local government. Assistance from their kin-state covers practically all their expenses, and they also receive help from another German minority self-government. The local government provides use of an independent office to the Gipsy minority self-government in its own property. The furniture was a gift from the German minority self-government, which is a good example of the possibilities of co-operation between minorities.
In the small town, none of the minority self-governments have independent premises. The absence of premises was described as a major problem by the president of the German minority self-government. The storage of their documents is unresolved, and they are forced to hold their meetings in the local elementary school or in the library. The German president explained that they would need an independent room where they could organise their national minority events as well as hold the meetings of the minority self-government. The Slovenian minority had also expressed its need for an own office on several occasion. The Croatian government does not consider it necessary to maintain an independent office; they hold their meetings in the conference room of the Mayor’s office. The Gipsy minority self-government also has no independent office. They have tried to find premises but in one office building the other tenants threatened the landlord to quit if the Roma self-government were to move into the building. Finding independent premises is hindered by the prejudices of the local society against the Gipsies. The representative of the local government acknowledged that the absence of independent office was a problem. He explained that unfortunately the local government had no vacant rooms, but we were promised that he would again communicate to the Mayor and the representative body the need for the use of separate premises.
The five minority self-governments in the large town visited operated under adequate circumstances. The local government provides the Croatian, Greek and Gipsy self-governments with separate offices within a building. Of the local minority self-governments, the German government has the most favourable operating conditions. They have an independent office in the building of the Mayor’s office, which allows for the discharge of their functions and also greatly facilitates their access to information. The Bulgarian government has no separate office but they do not require one either.
Other operating conditions
Other technical conditions required for operation are mostly assured by the mayor’s offices, in the opinion of the minority self-governments. Photocopying, sending faxes and mail do not present a problem anywhere. With the exception of phone bills, the overhead costs of the independent premises are financed by the local governments. In our experience, the standards of equipment of the German governments are the most modern due to the financial assistance form their kin-state.
1.2.2. Co-operation of the minority and local governments
Co-operation agreement
The conclusion of co-operation agreements between the local governments and minority self-governments is made compulsory, in the context of the approval of the budget, by Act XXXVIII of 1992 on Public Finances (Public Finance Act). In the agreement, financing issues as well as a number of other areas of co-operation can be regulated, but local governments have no legal obligation for the latter.
In the examined settlements, the co-operation agreements were limited almost without exception to financing and financial management issues. The demand has been raised that the written agreements should also regulate other co-operation related issues and the circumstances of assuring operating conditions. The president of one of the minority self-governments stated that they have good personal relations with the local government, but there is a danger that if the Mayor and the representative body is replaced, that co-operation may also change. Having realised this, they have initiated the amendment and expansion of the agreement, which at present deals exclusively with budgetary issues.
Participation and activity of minorities in the work of local governments
The presidents of minority self-governments are generally invited to the meetings of the representative body of the local government. However, they are not always sent the proposals on the agenda. As a result of our conversations, the town clerk of one settlement promised that in the future he would send to the minority self-governments all proposals relating to the agenda that may affect the rights, interest and position of minorities. Despite the regular invitations, the presidents tend to attend the meetings mostly only if topics directly affecting the minority are discussed. Several minority leaders explained that they see no point in attending regularly as the representatives of the local government are not obliged to listen to their opinions, and they have no voting rights.
In respect of the participation of the president of minority self-governments in in camera sessions, the exclusion of minority leaders from such meetings is still a common practice.
Minority representatives hardly ever participate in the work of the committees of local governments. Two Gipsy minority self-government leaders indicated during the interviews that they would like to participate in the work of the social and housing committee, but neither of them was aware that the minority self-government could exercise its right of initiative, requesting to participate in the committees of the local government. National minorities tend to participate only in the work of the cultural and education committees, the German governments being the most active in this field.
General assessment of co-operation
The relationship between the minority self-governments and local governments and the consideration of minority interest and needs in the course of decision making by the local governments varies by settlement and by minority.
It is beyond doubt that the success of co-operation hinges on the appropriate use of the “network capital”, the formation of good personal relations and the issue of political affiliation. According to our findings, the ability of minority self-governments to represent their interest is promoted by the fact that in one settlement the present mayor is of minority descent and the president of the minority self-government was a member of the representative body of the local government already in the previous election term. The minority leader of another settlement also emphasised: their work is greatly facilitated by the mayor belonging to their minority, and by the fact that several minority representatives are also members of the representative body of the local government.
In one settlement some minority self-governments described the relationship between the local government and the minority self-governments as exemplary. Our experiences indicate that it is very useful for the local government to employ a separate desk officer for minorities, who provides legal and administrative assistance as well as promoting communication and co-operation between the representatives of the various minorities and between the minority and majority population. It was mentioned as a problem that the minority self-governments were not consulted on the subject of selecting the minority desk officer.
The minority self-governments consider their leadership position to be mostly subordinated rather than co-ordinated. One Gipsy leader explained that he would attach outstanding importance to the training, further training and legal training of minority representatives as it is because of their “ignorance” that the local government does not treat them as equal partners.
In the three settlements minority self-governments practically never exercised their veto rights. Most presidents were not aware of the issues where the minority self-government had the right to be consulted or the right of veto. The German minority self-government of the examined large town is an example to the contrary, as they have “vetoed” several educational decisions of the local government. The president of one minority self-government indicated that even though in the cases required by law the representative body does solicit their opinion or their consent, these discussions are often mere formalities.
The interviews revealed that the relationship between the minority self-governments and local governments is significantly affected by the skills, commitment, approach and attitude towards minorities of the town clerk.
The deputy town clerk of one of the towns has been highly praised by the leaders of the minority self-governments and is highly skilled in the field of minority rights. In contrast, the conduct of the town clerk of another settlement is decidedly irresponsive, he has deficient knowledge of the Minorities Act, and complains that the legislator has imposed too many minorities-related tasks on the local governments. The Gipsy leader of the examined community explained that he has a good relationship with the town clerk, but in most cases the information provided by the town clerk is limited to legality rather than the explanation of legal possibilities. According to the president, they are unable to establish equal relations with the local government due to their inadequate legal skills.
According to the local governments, it is also a major problem that they receive no direct central budget transfers for assuring the enforcement of minority rights, which is a mandatory task imposed on them by the Local Government Act.
1.2.3. Revenues of the minority self-governments
Central and local government transfers
During the personal interviews we surveyed the sources of the funds of the minority self-governments visited and the ways the local governments supported minority self-governments.
We found a settlement where, in addition to the central budget transfers, the minority self-governments have received funding from the local government regularly, every year. In one settlement, the amount of that funding was identical irrespective of the size of the minority community and its problems. In another settlement, the German government receives significantly more funding from the local government than other minorities. We see the reason mostly in their more intensive “lobbying”.
At the other end of the scale, we also found a settlement where minorities received no funding from the local government apart from the central budget transfers, but they may obtain earmarked local government funds based on a specific request, on an application basis.
According to the visited minority self-governments, the local governments pay adequate attention to assuring that the central budget transfer is available to the minority self-government in due time, on a quarterly basis. Only one national minority leader reported occasional, but not regular, delays. Their cash transactions are executed on the sub-accounts of local governments.
The minority leaders find the amount of central budget transfers to be insufficient for the high quality performance of their functions and financing their operating expenditures.
Several minority self-government leaders complain about the identical normative grants. In their view, the present system should be replaced by headcount and task proportionate, differentiated subsidies.
The vast majority of minority self-governments are also dissatisfied with the funds provided by the local governments or available through applications. Many leaders consider that the small amount of funds indicates that the local governments are not really concerned about the life and rights of minorities. During our enquiry we found only one minority president who was not dissatisfied with the funding available from the local government.
In his opinion, if representatives forgo their remuneration, the normative budget transfers cover the operating costs of minority self-governments. Funding for tasks undertaken can be requested from the local representative body. (The president mentioned the example of the village decoration programme implemented by the minority self-government, to which the mayor of the settlement provided substantial assistance from the available funds.
Funding through application
More experienced and educated minority self-government leaders may supplement their revenues with substantial funding through applications. We encountered the problem that local governments provide little assistance to monitoring applications and to their preparation. This was mentioned as a problem primarily by leaders of Gipsy self-governments. Today one of the most important sources of information about applications is the Internet, but minority leaders tend to have no access to the Web.
One of the German presidents explained that, alongside with the minority self-government, it is worth maintaining national minority associations as well, as minority self-governments are often not eligible to apply. If the minority self-government may not submit an application, the association can do so, but the awarded sum is eventually used at programmes organised by the minority self-government, in the interest of the minority population.
Several minority self-government leaders emphasised that application funds are indispensable for their more ambitious cultural, traditional programmes which mobilise large numbers of people.
One Roma leader complained than in many applications they are not awarded funds because there is a general view of the Gipsy self-governments of settlements in Gyõr-Moson-Sopron County that they are “too well off” compared to Roma governments in other parts of the country.
Not every leader is satisfied with the application system of public foundations, they consider the funds awarded insufficient or complain about the repeated rejection of their applications. The president of the Bulgarian government also reported than in their experience they have a better change of winning at the applications of the Public Foundation for National and Ethnic Minorities in Hungary if they submit their application under the name of the National Bulgarian Self-Government. On occasion presidents of minority self-governments mentioned applications run by ministries where in theory they were awarded hundreds of thousands of Forints, but the sum has not been credited to their account to this day.
Other forms of funding
Funding from the kin-state represents a significant item among the revenues of German, Croatian and Slovenian governments primarily. These are not necessarily cash transfers, but for instance exchange programmes, books, course books, audio materials etc.
The Slovenian president explained that the planning of their budget and programmes is greatly facilitated by the knowledge that if their revenues fail to cover their expenditures, they can always count on the assistance of the Slovenian Association or the National Slovenian Self-Government.
In one of the settlements the president of the German minority self-government regularly transfers half of his remuneration to the Gipsy minority self-government because that government has no local revenue apart from the central budget transfer.
1.2.4. Activities of the minority self-governments
In our experience the activities of minority self-governments and the expectations of members of the minority community from the minority self-government are significantly different in case of the national and Gipsy minority self-governments. While national minority self-governments pursue primarily activities relating to the fostering of traditions, the preservation of their identities and mother tongues and the attainment of their cultural autonomies, the Roma governments strive to solve everyday problems of the Gipsies and undertake a certain communication, intermediation, conflict management function to that end.
National minority self-governments
The national minority self-governments visited in the region did their best to organise as many cultural events as possible. The self-governments also have many programmes organised of their own initiative and relating to their own festivals. However, they organise their events as an integral part of the cultural life of the settlements concerned.
Naturally, in this report, due to the limited space available, we are unable to describe the highly varied activities we encountered during the personal interviews; therefore we shall only mention the most interesting ones.
According to the presidents, the barn dances, balls, gastronomic events, the performances of dance ensembles and folk choirs etc. are important forums to present their national culture to the majority society and primarily to young people. In order to strengthen the identity of young members of the minority community and to pass on the cultural heritage, they regularly organise student, language, dance and choir camps. For lovers of paintings, the Greek and Slovenian government often organise exhibitions of the works of artists from their kin-states. Every government considers it its duty to organise visits to their kin-state. The president of the Slovenian and Croatian self-government mentioned that their governments also arrange for religious services to be held in their mother tongues from time to time.
Gipsy minority self-governments
The activities of the three Gipsy minority self-governments visited are fundamentally different from those of national minority self-governments.
All three presidents reported that Roma citizens generally turn to the Gipsy minority self-government because of their housing problems, utility bill arrears, job search difficulties, or for financial assistance.
The Roma president of the small settlement explained that even though they are often contacted with requests for financial aid, they do not wish to take onto themselves the welfare responsibilities of the local government. In his opinion, “the minority self-government is not there to deal with social issues”. In the course of his work he places emphasis on educational issues in the first place. He has established very good relationships with the educational institutions of the settlement, thus if there is a problem with one of the children, some school equipment is missing or he does not turn up in school, the teachers immediately contact the Roma minority self-government.
The Gipsy minority self-government which concluded a co-operation agreement with a foster-home to support children with multiple disadvantages also considers the education of the young generation to be its objective. The teachers give remedial classes to the young people living in the foster-home if necessary, the cost of which is fully financed by the minority self-government. In order to promote enthusiasm for learning, the President regularly invites famous, successful Gipsies so that the residents of the home see positive models, examples, possible career paths in front of themselves.
The third Roma self-government concentrates on job creation. It has concluded an agreement with the local government to organise and implement public interest work and community service. The president of the Gipsy minority self-government provides for the selection of workers, the tools and the supervision of work.
The Roma leaders have several projects waiting to be implemented. For instance, the minority self-government of one small town collects donations for the establishment of a “Gipsy centre”, while another president would like to initiate a major housing programme.
1.2.5. Education
In the three settlements there are only minority educational institutions teaching the German language. This is probably attributable to the fact that familiarity with the language of the German minority can be put to good use in the settlements along the border. When parents choose minority education for their children, they do so not only to maintain their minority identity and preserve the minority language but also with the intention of responding to market needs.
The majority of education institutions can only organise minority education in the field of language instruction. Attempts for the introduction of bilingual education were made in several locations, but the requirements are difficult to meet in the longer term and on a continuous basis, as there are no teachers able to teach specialised subjects in the minority language. To solve that problem, visiting teachers with the relevant mother tongue are employed. One of the German governments launched a kindergarten programme entitled “One person – one language”, the costs of which are covered by the local governments of two Austrian small towns and by the minority self-government. In another school, visiting teachers also teach specialised subjects, but it is a problem that the financial resources necessary for employing those visiting teachers from Austria are not continuously assured in the institution.
There are few teachers belonging to the national minority in the institutions engaging in minority education; the leaders attribute this primarily to the regional location of the settlements. It is a common phenomenon that national minority teachers who have a good command of the German language leave the teaching profession due to the low wages in the public sector and the problem of the salary supplement payable to speakers of foreign languages.
The heads of the educational institutions generally receive no detailed information from the local government maintaining the institution about the financial background of their institution. Several of them complained about the present financing system. The supplementary normative grant is given to every institution engaging in minority education, but in practice this means that the local government reduces the transfers to the institution from the local government by the sum of the supplementary normative grant. Thus is may happen that on the whole the institution engaging in minority national education receives less funding from the local government than the other education institutions in the settlement.
Another financing problem was encountered in two of the settlements. The maintaining local governments provided additional funding for teaching the minority language in small groups in the past years. Claiming financing difficulties, they now want to withdraw these local government transfers from the schools. The proposed measures may endanger the adequate quality of language teaching, therefore in the course of our interviews with the staff of local governments and at the forum we placed special emphasis on this problem, and recommended that an alternative solution is found to resolve the financing difficulties.
1.2.6. Use of the mother tongue
The presidents of the minority self-governments of the three examined settlements fully agree that the minorities have suffered a serious loss of mother tongue, therefore considerable assimilation. Young people speak the minority language less and less, or study it only as a second language.
Members of the minorities typically use their mother tongue in the family, at home, when communicating with the elderly and at minority events. With the exception of one German self-government, the meetings of the representatives of minority self-governments are always conducted in Hungarian. In case of the Slovenian government this is because the minutes of the meetings are keeps by an employee of the mayor’s office, who does not speak Slovenian.
In respect of the loss of mother tongue, the Gipsy community is in the worst position. The leaders of their self-governments unanimously claim that their language is spoken only by very old people, and the young do not require language instruction.
The Greek minority, despite their distant kin-state and low numbers, fights to preserve their language with effective means. The president of the Greek self-government holds language classes on a weekly basis for elementary and secondary students as well as adults who belong to the Greek minority. As they try to often organise visits to Greece, even the adult members of the minority community who had hardly ever heard the language from their parents are learning Greek now.
In our experience, the German minority is the most efficient at preserving and using its mother tongue. This is of course attributable to a large extent to the practical applicability of the German language. The Slovenian president specifically complained that their young people will only study German, even though he considers the preservation of the language to be a fundamental task of the minority self-government.
The law assures the right of minorities to use their mother tongue in official proceedings, but in practice there is little demand for this. One of the German minority presidents explained that several civil servants in the mayor’s office speak German, thus elderly members of the German minority community can conduct their local administrative affairs in their mother tongue.
Only the German minority would have wished to have street signs in the minority language, but the representative body refused to put the informal request of the president of the German minority self-government on the agenda, claiming financial reasons.
None of our interviewees had information about the possibility of entry into the official registers in the minority language.
1.2.7. Summary
As one of the most important results of our enquiry in Gyõr-Moson-Sopron County, at our on-site visits we could engage in the exchange of experiences and conversations with the representatives of the minority self-governments and local governments and the heads of minority educational institutions.
The forum, which was organised to conclude the enquiry, also offered an excellent opportunity for the heads of minority self-governments and mayors of the county to meet each other and to learn about the problems or established, successful practices of other settlements. According to the participants, there are few events or meetings where they could talk, argue, and where they can mutually learn about each other’s work and professional information can be obtained.
The comparison of the enquiry of 2002 in Baranya and Szabolcs Counties and of 2003 in Gyõr-Moson-Sopron County reveals that the problems relating to the enforcement of minority rights are similar in the three counties. Therefore in the summary we only wish to highlight a few problems and challenges, without an ambition of completeness.
Our enquiry in Gyõr-Moson-Sopron County also underlined that the efficiency of operation of minority self-governments is greatly hindered by their insufficient financing. The low amount of central budget transfers often fails to cover even their operating expenses. As an additional problem, the central normative grants are identical for every minority and settlement. As we have indicated on several occasions in the context of the various ombudsman’s enquiries, it would be necessary to introduce a differentiated financing system, which would take into account the size of the minority community, the characteristics of the settlement as well as the functions undertaken.
Local governments are hindered in fully providing the operating conditions to minority self-governments and elaborating an extensive system of support primarily by the lack of budgetary funds. In order to assure the operating conditions of minority self-governments, it would be important to specify in detail in the ARNEM the conditions and specific forms of assistance that local governments must assure. We called attention in last year’s enquiry to the regulatory deficiencies, which result in controversial situations and conflicts.
Our enquiry revealed that even though the Local Government Act sets the enforcement of national and ethnic minority rights as a mandatory duty, if local governments receive no budgetary funding for this purpose, this task cannot be implemented at the appropriate standards, or at all.
We also found financing difficulties in the minority educational institutions operated by the local governments. The heads of kindergartens and schools providing minority education and the affected minority self-governments must be provided opportunities to acquaint themselves with, review, and comment in a timely manner on, the financing plans of the institutions.
The enquiries conducted in Baranya and Szabolcs Counties in 2002 and in Gyõr-Moson-Sopron County in 2003 all highlighted that the relationship of the local governments and minority self-governments and the success of their co-operation are affected primarily by subjective factors (personal relations, acquaintances, politics, etc.). It would be expedient to create a clear, unequivocal and stricter legal framework for the co-operation of the two bodies. The effective regulations offer no instruments or sanctions to “force” the local government to support the enforcement of national and ethnic minority rights.
1.3. Conflicts emerging between the minority and local governments because of the lack of dialogue
In our report we devote an entire chapter to the issues relating to bureaucratic case-handling in public administration, but we should also elaborate here, when discussing controversial issues relating to the operation of minority self-governments, on the phenomenon which is important for the minority community as well as the ability of minority self-governments to assert their interests.
Minority self-governments are entities operating on the local level, and they can be contacted with confidence by members of the minority community who are unable to successfully proceed in their affairs due to their nature, as they are not familiar with the official procedures, or have inadequate capabilities to conduct their business or assert their interests, are inexperienced in administrative issues, uncertain about the working of applications or completion of forms, or are simply dissatisfied with the procedure of the local administrative bodies.
Minority self-governments generally take on this task and act as intermediaries between the local government, local authority and its clients, mostly successfully. There are cases, however, where the minority self-government is unable to fully assert the interests of its client.
The case of a Gipsy minority self-government in Bács-Kiskun County is one such example. The members of the minority they represent asked for their help in the administration of their business in the mayor’s office; in this context the question emerged whether the client may give a power of attorney to the minority self-government so that it may represent him in the official procedures or the meeting of the special committee.
The administrative work of the mayor’s office is governed by the provisions of Act IV of 1957 on the General Rules of Public Administration Procedure (PAP Act), which specifically regulates the issue of representation. According to Section 18 (1) of that Act, “unless a legal regulation requires that the client proceed in person, his legal representative or authorised representative may also proceed in his name”. Thus in accordance with the rules and in the cases specified in the PAP Act, it is possible that, in cases conducted according to the rules of public administration procedure, the clients of Roma descent who feel the need may request representation and resort to the assistance of a person who belongs to their own minority.
However, the local government may act not only in official proceedings subject to the public administration procedure in the mayor’s office; in many cases the representative body of the local government or one of its committees make decisions, or the latter adopts proposals for decisions. It is therefore expedient if the minority self-government can also represent and assert the interest of individuals or the minority community at these forums.
The local government and its committees are corporate bodies, which make their decisions at their meetings. Attendance at these meetings is assured for voters in Section 12 (3) of the Local Government Act, which is a safeguard for the democratic operation of the local government and the enforcement of the principle of publicity. This means the possibility to attend the meeting, but does not include the right to participate in discussions or to make comments to influence the decision. The corporate body may grant that right in an individual decision, in the cases and with the conditions specified in its organisational and operational rules, but it may also provide that certain organisations, such as the minority self-governments, in general have the additional powers as defined in the organisational and operational rules.
The participation of the president of the minority self-government in the in camera sessions of the local government is a recurring issue in our work as minorities commissioner. In the past years we have expressed our opinion on this issue on a number of occasions, but as the example below indicates, this issue is still controversial and law enforcement entities disagree on it.
In this context, for instance, we elaborated in detail on our legal reasoning in connection with the case of a Gipsy minority self-government of a settlement in Szabolcs-Szatmár-Bereg County.
There we pointed out that even though Section 102/E of the Local Government Act provides that “the president shall represent the local minority self-government, and may attend the meetings of the representative body of the local government with the right to be consulted”, Section 12 (5) of the same Act gives rise to misunderstandings and different interpretations in connection with the attendance of the president at in camera meetings , as it provides that “in camera meetings are attended by the members of the representative body, the minority spokesperson and the town clerk and, upon invitation, the party concerned and the expert”. At this point the uncertainty of interpretation is caused by the fact that the listing does not specifically mention the president of the minority self-government while it names the minority spokesperson.
When interpreting the disputed section of the Local Government Act we must also take into consideration the provisions of Section 23 (7) of the ARNEM, which provides that “a minority may be represented in the local government by a spokesperson only if the minority represented by such has no local minority self-government”.
Because of the above, the listing in Section 12 (5) of the Local Government Act cannot be considered as exhaustive. This reasoning is supported by the aforementioned Section 23 (7) of the ARNEM, which allows a spokesperson to represent the local minority, at the in camera session of the local government if necessary, if that minority has no local minority self-government. If there is a local minority self-government operating in the settlement, it is clearly represented by the president, who exercises the right of the minority to be consulted or to comment also at the in camera sessions of the local government.
Therefore it is not a valid interpretation of the law that exclusively the holders of the positions listed in Section 12 (5) of the Local Government Act may attend the in camera sessions of the local government, and in our view the practice whereby the local government does not allow the president of the minority self-government, or in case of his incapacity, the minority representative acting as his substitute, to attend in camera sessions. In order to terminate that violation, we initiated the amendment of the organisational and operational rules of the representative body of the local government as appropriate so that the president of the minority self-government may attend the in camera sessions of the representative body of the local government. Simultaneously we called the attention of the head of the public administration office to the need to closely monitor in the future the activities of the representative body and of the mayor.
However, allowing mere attendance at the meeting is no guarantee that the representative of the minority self-government may express his views and effectively assert the interest of the minority community. The aforementioned Gipsy minority self-government in Bács-Kiskun County also complained that they received invitations to the meetings of the local government, but not the proposals to be discussed. The minority self-government, quite appropriately, expressed the demand to be sent the invitation to the meetings of the local government together with the written attachments in due time before the meeting so that they can form an opinion.
The identity of those to receive an invitation, written proposals concerning all the items on the agenda, or concerning only certain items, is also determined by the local government in its organisational and operational rules.
In this respect our position is the same as explained in the comment to Section 12 of the Local Government Act – on the operation of the representative body – which states in connection with proposals that “thereby the preparation of representatives for decision making can be assured”. Without knowing the proposal and the details and information contained therein, it is impossible for the president, who otherwise attends the meeting with the right to be consulted, to take a position and form an informed opinion and to represent the interest of the minority community adequately and in an appropriate manner.
Thus if the minority self-government receives no proposals together with the invitation to the meeting of the local government, he must make note of its absence and require that subsequently he is sent the proposals together with the invitation. As this issue is regulated by the local government in its organisational and operational rules, the minority self-government, exercising its legal right to make initiatives, should request the representative body of the local government to amend that bylaw as appropriate.
No explanation is needed why one of the key issues for the Gipsy minority is the financial aid to those in need. Supporting disadvantages families and persons, as well as the identification of such, is generally the task of the local government or, in a delegated function, of the social committee. By participating in the decision making, the minority self-government has a better chance of asserting the interests of the Gipsy community, who are often in multiple disadvantaged positions, and to express their views on the award of the various grants already in the decision preparation stage.
As minority self-governments in general clearly demand that the local government involve them in their proceedings relating to the award of welfare grants and other forms of support, we consider it our duty to inform the representatives of minority self-government who turn to us about the ways to achieve this.
In our opinion, to facilitate the assertion of the social interest of the members of the Roma minority, the local government must provide an opportunity for the local minority self-government to participate in the decision making procedure relating to social assistance. However, the first steps must be taken by the minority self-government. This is why in cases like the above example of the Gipsy minority self-government in Bács-Kiskun County we deem it necessary to point out to minority representatives that they should request that in the social committee of the local government they can represent the interest of the members of the minority community as so-called external members, with decision making powers, through a minority representative or a person delegated by the minority self-government.
The representative body of the local government decides about the composition and members of committees in the local government bylaw on its organisational and operational rules. In order to assure that the minority representative or the person delegated by the local minority self-government becomes an external member of this committee, the minority self-government must initiate, in a resolution, the amendment of the bylaw of the local government. The modification (or expansion) of the composition of the social committee should be requested together with the identification of the person delegated into the committee and the detailed justification of the initiative.
This committee generally also comments preliminarily on the social (employment, land and other livelihood related) programme of the local government, which affects people in disadvantageous positions, and among them mostly the Roma. The minority self-governments have realised the potentials inherent in those programmes, as shown by the example of the Gipsy minority self-government of a settlement in Szabolcs-Szatmár-Bereg County, which complained that it has no factual information about applications affecting the local Gipsy population and the possibilities open for the Roma through applications. According to the president, the local government did not involve the local minority self-government sufficiently in the selection and preparation of applications and the implementation of the winning projects.
In the course of the enquiry the mayor and the town clerk informed us that they have won two Roma applications and one is in the process of being submitted. The local government and the Gipsy minority self-government submitted a joint application to the Public Foundation for Gipsies in Hungary for seeds for vegetable gardens (potatoes and vegetable seeds) in 2003. The own funds required for the application were provided by the local government. The subject of the disagreement was the mode of distribution of the seed potatoes. Upon the instruction of the local government, this was done by persons on public interest work. The president of the Gipsy minority self-government did not participate in this despite the fact that he had compiled the list of beneficiaries, which had been attached to the application and which, as later turned out, had been supplemented in the mayor’s office without consulting him. The conflicted emerged because some Roma families confronted the president when they received no seeds while others, non-Roma families, did.
As to the future, the mayor informed us in connection with the applications that the minority self-government and the local government were jointly applying to establish a position of minority assistant. According to their plans, the assistant would work in the office of the minority self-government, dealing with minority issues. The letter of intent for co-operation made available to us in connection with the programme “Promotion of the Integration and Enhanced Equality of Opportunities of Roma Communities”, launched by the Labour Centre of Szabolcs-Szatmár-Bereg County, identified only the mayor and the town clerk as the co-operating parties in the settlement, while the local Gipsy minority self-government did not sign the agreement. There is also no written proof that the local government would have preliminarily solicited the opinion of the local Gipsy minority self-government in connection with the programme, or that they would have even informed them about the opportunities.
Because of the above, we initiated that the minority community should acquaint themselves with the tender invitations and participate in their preparation, in the application procedure itself and, if the application is successful, in the implementation.
As this was justified by other reasons, i.e., local conflicts, we also recommended, in order to remedy the complain of the local Gipsy minority self-government, that the local government, potentially in the framework of the annual public hearing, put on the agenda and discuss in the merits the position of the local Gipsy community, simultaneously providing detailed information about the local programmes and applications affecting the Roma.
To facilitate conflict-free co-operation we also recommended that, following the decision to participate in the application process, the two governments lay down in a co-operation agreement all the detailed rules of the application procedure, which in the future would guarantee for the minority self-government that it can effectively represent the interest of the local minority population, especially in the course of applications for Roma programmes. Presumably the absence of that arrangement also contributed to the escalation of the conflict between the two governments in the settlement in Szabolcs. We have received no response to our initiative as yet.
It is desirable, but not yet a general practice, that the local government and the minority self-government lay down the procedural rules of joint applications and their implementation in an agreement, either by expanding the co-operation agreement concluded pursuant to the Public Finance Act or separately.
1.4. Tasks of the minority self-government in employment – a new dimension of minority rights
According to some sociological studies, the unemployment rate is approx. 80%, i.e., four out of five people have no jobs. In contrast, last year the unemployment rate among the entire population was approx. 6%, according to the data of the Central Statistical Office. Even though this ratio does not accurately reflect the real labour market position of the population – surveying that would be an almost insurmountable task – still it is safe to say that Roma unemployment is several times higher than the national average. Clearly, such a difference in employment can be eliminated only by powerful government measures.
Right to equal opportunities in employment
In Hungarian law, the legality of positive discrimination (affirmative action) programmes is based on Section 70/A (3) of the Constitution. In this provision, the Republic of Hungary declares that it “shall endeavour to implement equal rights for everyone through measures that create fair opportunities for all”.
In its decision No. 9/1990. (IV. 25.) AB, the Constitutional Court defined the limits of affirmative action in legislation. The position statement exposed general legal principles that may govern the elaboration of the various action plans as well. According to the Constitutional Court, the prohibition of discrimination does not mean that any discrimination is forbidden, even if it sets out to ultimately achieve greater equality in society. The prohibition of discrimination means that the law should treat everyone as equal (as individuals with equal dignity), that is, the criteria for the allocation of rights and benefits must be determined with equal consideration to individual factors. The right to equal personal dignity may occasionally result in the right to distribute goods and opportunities equally, also in quantitative terms, to everyone. However, if some social objective can be attained only if equality in the narrow sense is not implemented, such affirmative action cannot be regarded as unconstitutional.
Based on this reasoning we can conclude that special employment programmes which serve to attain greater social justice cannot be contested on constitutional grounds, indeed, they are desirable and necessary.
On the labour market young career starters, long-term unemployed, people with altered working capacity, people above 45 years of age and the Roma are all at a disadvantage, even if in different degrees; therefore the application of the principle of affirmative action is justified in case of each of these social groups. However, special attention is warranted for the measures to improve the employment position of the Roma, as on the one hand this is the area prone to the most severe problems, and on the other hand they not only suffer from factors undermining their chances of finding jobs but they also have to face prejudices.
The first and most important question is which arrangement would be most conducive to the equality of opportunities of the Roma: the introduction of quotas or incentives to businesses employing them.
Under the first arrangement, a certain group of persons is given preference to assure social justice in the broader sense and equal opportunities. This system was employed in the United States in the 1970’s, when they wished to assure employment corresponding to the proportions in the population by introducing quotas.
Under the second arrangement, attempts are made to improve or eliminate the disadvantaged status by various measures and action plans. To stay with the US, we could mention the 1979 guidelines of the Equal Employment Opportunity Commission, providing that the social and economic conditions of minorities must be improved through voluntary preferential programmes. To quote a Hungarian example, we could mention the Government’s Gipsy action packages approved since 1997, which are based on such theoretical foundations.
In recent years debates emerged in Hungary as well about the method that could be more effective in practice. It would be inappropriate for us to take a position on this issue, as we consider any arrangement acceptable that could bring about effective improvement in the position of the Roma minority.
However, the experiences of countries that employed measures to improve the equality of opportunities warn that care must be taken that affirmative action does not give rise to feelings of injustice and inequity in persons who may also be in a disadvantageous position. In this case we would run the risk that, contrary to its original objective, this would not alleviate social differences; instead, it may lead to additional tensions or even increased prejudices against the target group of the programmes. To avoid these undesirable trends it is necessary to connect the programmes with awareness raising efforts. This includes campaigns, communication strategies which have the objective of highlighting the dangers of racism and the disastrous consequences of prejudices and exclusion. We consider it desirable to make the broadest possible range of people realise: the measures promoting equal opportunities for the Roma are important not only for the situation of that minority but they also coincide with the interest of the “majority society”.
Parliament conveyed this message by adopting Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities (Act on Equal Treatment). The fundamental principle of the Act is that everyone has the right to live with equal dignity. It also declares that the promotion of the equality of opportunities is primarily a government obligation. However, the adoption of the Act was the start rather than the end of a process, as the requirement of equal opportunities imposes additional legislative tasks on Parliament and the Government.
New horizons of legal regulation and outstanding issues
Section 2 of Act IV of 1991 on the Promotion of Employment and Benefits to the Unemployed (hereinafter: Employment Act) sets out the prohibition of discrimination, and in this context “it does not rule out the possibility that persons in a disadvantageous position on the labour market may be entitled to additional rights”. The fist amendment of the Employment Act, which entered into force on 1 January 2003, was adopted in that vein. According to Section 20 (2) of that Act, “in order to improve the labour market position, and promote the employment, of persons above 45 years of age and of Roma descent, the Minister may establish rules more favourable than the ones promulgated in this Act”.
The instances when student scholarships for the Roma were used illegitimately by non-Roma signalled to the drafters of the ministerial decree that a system of support which does not have adequate safeguards entails the possibility for abuse. This assumption was reinforced by the experiences of the local government election of 2002. The Labour Ministry had to make a choice: it either tries to define in a legal regulation the range of beneficiaries, and thus bar “undesirable” persons, or it tries to involve minority self-governments and minority organisations to assure that such assistance goes to the eligible persons. The legislator opted for the second solution. The new rules have been incorporated into the Decree No. 6/1996. (VII. 16.) MüM on assistance to promote employment.
Benefits fall into two main categories. Departing from the general rules, funding can be provided for the completion of the elementary school, for vocational training, education preparing for university or college studies as long as the Gipsy minority self-government, an association of Gipsy minority self-governments or a Gipsy interest representation organisation registered by the court participates in its organisation and the selection of participants. The legal regulation also provides for higher grants if participation in public interest work is organised by the Gipsy minority self-government (association of Gipsy minority self-governments, Roma interest representation organisation) or such participates in its organisation. In that case, the grant may reach 90% of the direct costs of employment, and it may be available for two, rather than one, years.
While we welcome the adoption of this legal regulation, we had to call attention to several substantive deficiencies in the draft text already in the drafting stage.
At present grants are linked only to training to prepare for employment and to public interest work. Affirmative action in favour of the Roma is not present in the case of the grants, regulated in the Ministry of Labour decree, which promote transition to a self-employed or entrepreneur status, job creation and preservation or the expansion of employment. Even though public interest work plays an important part in alleviating the job search problems of Roma unemployed, they offer only a temporary solution. In the future measures should be taken towards permanent employment, one possible solution being the expansion of the forms of increased assistance.
The amendment of the Ministry of Labour decree entered into force in October 2003, therefore we are not in a position to evaluate it. (All the more so as the winter months are “off season” for purposes of public purpose work, therefore we had no opportunity to collect experiences). It is likely, however, that in order to obtain the benefits, the Gipsy minority self-governments will be given a much greater role in making local employment decisions. Undoubtedly, the participation of these bodies in the selection of workers may be a safeguard against abuses. It would be undesirable, however, if the amendment were to lead to the duplication of the system of public purpose work and a practice would emerge where the employment of the non-Roma is organised by the local government, that of the Roma by the Gipsy minority self-government. This separation would give rise to concern because the duties of the two bodies in assuring employment are fundamentally different.
The minority self-governments have the legal obligation primarily to protect cultural and educational rights. On the other hand, legal regulations also allow them to take on a role in programmes aimed at improving the labour market position of the community they represent.
In contrast, Section 8 (1) of the Local Government Act defines participation in the arrangement of employment among the core tasks of local governments. The content of this obligation is clarified by the provisions of the Employment Act. Accordingly, in order to promote employment, prevent unemployment and alleviate its adverse consequences, the local governments must co-operate with the Government, the employers and the potential employees and the interest representative bodies thereof. Their tasks also include the organisation of public purpose work for the unemployed and the employment of persons eligible for regular social aid. In the course of the preparation and implementation of their decisions, local governments must take into account their impact on employment.
Accordingly, the promotion of the fullest possible employment of the population is the responsibility of local governments, and they cannot arbitrarily pass on this obligation to the minority self-governments. The latter have participation in the implementation of public purpose work only as a voluntary tasks rather than a legally prescribed duty.
Our fundamental objection to the Ministry of Labour decree is that even though it was issued to implement the Employment Act, it has adopted different regulatory principles. The Employment Act talks about the promotion of the employment of “persons of Roma descent”, while the ministerial decree does not directly provide for the range of eligible persons.
In the chapter on election issues we have discussed in detail that the only constitutional and effective way of combating abuses can be the introduction of a register of minority voters. In our view it is inevitable to discuss whether this regulation could be adapted, in some form, to other legal areas.
Today the Roma community is still divided on the issue whether legislation should move in that direction in the context of the employment programmes. It is a frequent counter-argument that such a regulation would engender fear and animosity in many, due to the historic experience of the past decades. It is a fact, however, that equal opportunities measures could be made available to a much broader range of the Roma community if the legislative provisions were to exclude the possibility of abuse. As a starting point of solving that dilemma, the declaration of minority identity and the making of such statement should be required only if the supply of data is voluntary and if this is essential to ensure the enforcement of some constitutional right.
As we were writing this report, the Ministry of Employment and Labour Affairs announced its tender for a public works programme aiming at the employment of disadvantaged, long term unemployed persons, primarily Roma, improving their livelihood and living conditions and the catching up of disadvantaged settlements and micro-regions. The applicants must undertake to establish employment relations with registered unemployed and recipients of regular welfare aid. According to the tender invitation, efforts must be made “to select a large number of the persons to be employed from the unemployed of Roma descent living in slums or slum-like neighbourhoods”. The application must accurately specify the number of persons proposed to be employed, and within that, the estimated number of Roma. A maximum of one billion HUF is proposed to be distributed to applicants in the form of grants.
We consider the launch of that programme to be an important and necessary measure. However, the deficiencies of legal regulations are shown by the fact that even though the tender intends specifically to improve the employment position of the Roma, the participants cannot even be asked, at least formally, whether they actually belong to that minority group. The applicants are only required to undertake to co-operate with the Gipsy minority self-governments or the local Roma communities. Therefore decisions must be made about one billion Forints while no one knows how much of the funds will actually end up at the main target group of the programme.
The members of the minority community are entitled to the particular minority rights. According to the Decision No. 58/2001. (XII. 7.) of the Constitutional Court, the state must terminate, through legislation, the current practice which is incongruous with the actual regulatory intention and which allows persons not belonging to the community concerned to make use of various minority rights. In view of this, we can conclude that from the aspect of constitutionality it does not give rise to concerns – indeed, in some cases it is unavoidable – that the legislator may make the exercise of minority rights conditional on certain criteria in order to preclude abuses.
In our view this regulatory principle, while also respecting the requirements of voluntariness and target orientation, may be the basis for the design of various affirmative action measures by the state, including the expansion of the range of benefits and grants available to members of the Gipsy minority.
Employment tasks of local governments
As evidenced by the complaints we received in the past years, the unemployed find it difficult to understand the various forms of employment defined in legislation. They cannot clearly see the difference between public purpose work, public work and community service.
One Gypsy minority self-government turned to the minority commissioner complaining that the local government established different wages for the unemployed, which generated tensions in the settlement.
Our enquiry revealed no adverse discrimination. The cause of the different wage rates was that the local government employed unemployed persons without qualifications as public purpose workers for minimum wages. Another group of the unemployed worked under the public works programme affecting the settlement, and received wages above the minimum wage.
The difference between public purpose work and public work lies in the following:
The aim of public purpose work is to improve the employment position of disadvantaged unemployed and to create job opportunities for them. Such benefit is available for the performance of public tasks or public purpose activities affecting the population or the settlement. The decision on the award of the benefit and its extent is taken by the head of the labour agency with jurisdiction in the area, in an administrative resolution. Public purpose work is financed from the Labour Market Fund. The maximum extent of support may be 70% of the direct costs of employment or, in settlements specified by the labour council, 90%.[7]
The purpose of public work programmes is to promote the discharge of public tasks suitable for reducing unemployment in the field of development, renovation, in particular infrastructural and environmental tasks and activities serving the catching up of underdeveloped regions. Support to public work programmes is decided, on an application basis, by the Minister for employment and labour affairs. Applicants must undertake to contribute at least 10% of the requested funding themselves to the implementation of the public work programme. The assistance is funded from the facility set aside in the Budget Act.
The introduction of community service has made the system of job opportunities for the unemployed even more difficult to understand. Parliament amended Act III of 1993 on Social Administration and Social Benefits (Social Act) with effect of 1 May 2000. The purpose of the amendment was to provide increased incentives to the unemployed receiving benefits to seek for jobs. It was also promulgated that regular welfare aid could be awarded only if no employment for the applicant could be found. The local government was obliged to look primarily into the possibility of involving the applicant in public work or public purpose work. In the absence of such, the eligible persons had to be assured work for at least 30 days organised by the local government.
The regulations governing the regular welfare aid to active-age unemployed persons and their organised employment by the local government were amended as of 1 January 2002. The amendment made it clear that community service could be organised also during the disbursement of aid. The legislator also provided that community service means the discharge of state or local government tasks which do not qualify as public purpose work or public work and the implementation of which is assured by the local government pursuant to a legal regulation.
The intention to enforce the principle of “work instead of aid” underlay the introduction of community service. The idea was that persons in need of welfare should exhibit their willingness to take action to improve their own positions.
Before the amendment of the Social Act in 1999, we indicated to the Minister of Social and Family Affairs at a personal meeting that local governments will probably be unable to meet their obligations to organise employment. The validity of that statement has been underpinned since then by a number of mayors and several employees of labour centres. A significant part of local governments are unable to assure community service as in most of the year there are no job opportunities in the settlement apart from seasonal work requiring no qualification. Work organised by the local government is often no more than “quasi-employment”: The economy of sanitation and neighbourhood upkeep work, which is typical in the framework of community service, is questionable, as the costs of labour safety instruction and the obligation for compensation for potential working accidents are also borne by the local government.
In our opinion it would be necessary for the Ministry of Health, Social and Family Affairs, involving the relevant ministries, to summarise the experiences gained in connection with community service and to assess how the objectives of the amendment were achieved. The assessment must also cover whether the employment has any favourable mental effects on the beneficiaries, to what extent local governments can meet their legal obligation, how useful the employment is economically, and what costs it imposes on local governments. The impact assessment could unambiguously reveal whether the maintenance of the system of community service is justified.
A special responsibility of the local government: assuring the possibility of community service
The system of sanctions laid down in Act LXIX of 1999 on Offences (Offences Act) specifies two kinds of penalties: fines and imprisonment. If not paid, fines must be commuted into community service or imprisonment, unless they can be collected under the general rules of administrative enforcement or in the manner of taxes. The town clerk competent at the residence of the perpetrator designates an institution or economic organisation as the location of community service, taking into consideration the health and capacity for work of the person concerned and with the consent of the employer. If the perpetrator refuses to do community service, or no position can be found for him, the fine must be commuted to imprisonment.
The purpose of the introduction of community service was to assure that perpetrators who are unable to pay the fine imposed are not subjected to considerably graver punishment, imprisonment in a police station-house or prison, merely because of their financial position.[8] However, community service offers a real alternative to imprisonment only if employers provide opportunities to implement that sanction.
A complainant reported that since the local government elections of 2002, there had been no possibility in the settlement to commute fines imposed for offences but not paid to community service. In his opinion this practice adversely affected primarily the Roma, because they are the ones unable to pay the fines due to their financial positions.
Our enquiry found that in previous years the local government had regularly employed community service workers. However, after the latest elections the mayor no longer gave his consent to their employment. There were no other job opportunities in the settlement, therefore the fines imposed could not be commuted to community service and several perpetrators were imprisoned.
The Mayor explained his measure saying that the local government is unable to cover the costs of organising and supervising community service. They also fear that the local government would be liable to pay compensation should there be work accidents.
We do not doubt that the organisation and supervision of work imposes financial burdens on the local government, but this may be offset by the useful work performed by the perpetrator for the community without any remuneration. Refusal to organise community service is especially unjustified in settlements where public purpose work is regularly organised. As public purpose workers must receive labour safety instruction, the participation of community service workers in the same sessions would impose no additional costs. The case is the same in terms of supervision, as the same person could perform this task for both forms of employment. Most local governments have the tools necessary for implementing community service, or else their procurement entails no major outlays.
Still, this case highlighted an exiting problem. Community service is subject to the compensation rules laid down in the Labour Code. Section 174 of the Labour Code provides that the employer has full liability for any damage cause to the employee in relation to his employment, irrespective of culpability. The law provides exemption from that liability only for a narrow range of cases. Thus it is a justified concern that the local government can be liable to pay compensation if the person employed under community service suffers an accident. On the other hand, Parliament has already taken steps so that the implementation of community service imposes the lightest possible burden on employers. Community service workers are entitled to accident-related health services, but they are exempted from the payment of accident contribution by law. The costs of accident-related health services or sickness pay are covered by the social security and not the employer. (If the accident occurs because the employer failed to meet is obligations under labour protection rules, it must reimburse the costs of health services.)
On the other hand, in the examined case we concluded that the local government refused to organise community service for reasons other than the potential liability for compensation. The real reason was obviously that the mayor attributed no deterrent or educational effect to this sanction; therefore he did not permit the employment of perpetrators. In our opinion, this position is highly contestable. We do not think that it would be more educational than public work if the most vulnerable inhabitants of the settlement, who are unable even to pay the fine, are stigmatised by being locked up in a prison or station-house for relatively minor offences. Therefore we initiated that the representative body terminate this practice and re-introduce the possibility of community service. Until the completion of this report, we have received no response.
However, this case is not only an example of incorrect, arbitrary law enforcement; it also highlights deficiencies in the legal regulations. It is unacceptable that people can be sent to prison for failure to pay a few ten thousands of fines just because they live in a settlement that provides no possibility for community service.[9] The punishment must depend on the gravity of the offence and not on whether the local government allows the implementation of community service. We are convinced that the legal regulation that makes the perpetrator bear the adverse legal consequences of the absence of job opportunities is unconstitutional.
2. Minority media
Operational problems of the minority media
The minority media has a significant role in achieving the cultural autonomy of minorities living in Hungary, preserving and publicising their cultural heritage, the fostering and development of their mother tongue. This is why it is highly important that, as required in the ARNEM, public service radio and television continuously provide for the conditions of the professional preparation of quality minority programmes and to their broadcasting to an increasing scope of audience. In recent years we looked at the problems of the operation of the minority media on several occasions.
In this context, in 2003 we concluded our enquiry, which had been ongoing for over a year, and which affected the operational difficulties and conditions of the editorial offices and workshops of the Regional and National Minority Studios of the Hungarian Radio Rt. (Hereinafter: HR Rt.).
Our ex officio enquiry was meant to find out if the reorganisation of the regional studios in 2002 and the appointment of their new directors had an adverse effect on the position of minority editorial offices and workshops, their air times, contents and financing background. In this context, based on the complaints of the presidents of the Slovak and Serbian National Governments, we examined the organisational changes and financial positions of the national minority editorial offices and workshops of the Regional and National Minority Studios of the Hungarian Radio in Pécs and Szeged.
Reorganisation of the regional studios
As regards the reorganisation of the regional studios, the president of the MR Rt. was of the opinion that the reorganisation and competition for the posts of directors, which occurred in regional studios, affected exclusively programmes broadcasted in Hungarian and the senior positions responsible for those programmes. In contrast, the invitation to tender issued by the Hungarian Radio Rt. for the position of studio director listed among the tasks of the studio director: professional direction of the work on public service, Hungarian and national minority programmes prepared in the regional studio, as well as, inter alia, arranging for the presentation of national minorities living in Hungary in the programmes.
The Organisational and Operational Rules of the HR Rt. mentioned, among the general responsibilities of studio directors, that:
· they are responsible for the preparation and broadcasting of national minority programmes in the duration determined in Act I of 1996 on Radio and Television Services (hereinafter: RT Act);
· they must regularly liase with national minority self-governments, associations and organisations;
· they represent the HR Rt. at national and minority events;
· they participate in the preparation and implementation of the national minority programmes of the HR Rt.
Thus the appointment of new studio directors clearly affected the operation of the minority editorial offices and workshops of regional studios even if it did not result in reducing the airtimes of national minority programmes or in the fundamentals change of personal conditions.
In selecting the studio directors, the HR Rt. considered it important to appoint persons who undertake to introduce more efficient financial management amidst the tightening financial constraints and to implement, if necessary, the required austerity measures.
However, in the invitation and assessment of the tenders of regional studio directors, no conditions were set as regards the selected persons being adequately committed to the preservation and improvement of the content and quality of national and ethnic minority programmes. In our opinion, these considerations were safeguarded by the composition of the evaluation committee. However, it would have been expedient in addition to solicit in advance the opinion of the national minority self-governments in connection with the design of the new organisation structure and the working of the invitation to tender. The president of the HR Rt. is not obliged by law to do so, but such a co-operation is possible.
In view of all this, we recommend to the president of the HR Rt. that in subsequent similar reorganisations he consult in advance the representatives and experts of national minority self-governments.
3. Informal participation of the parliamentary commissioner in the work of legislation: assessment of our involvement in the preparation of legislation
The experiences of recent years also indicate that in the course of the codification efforts, the various line ministries rely on the opinion of the ombudsman. This is reasonable and obvious, as Section 26 of Act LIX of 1993 on the Parliamentary Commissioner for Citizens’ Rights (PC Act) allows ombudsmen to independently set forth initiatives for legislation, including initiating legislative amendments or the repeal of legal regulations. We need not explain at length why it would be expedient to assure this right for the various parliamentary commissioners in the Act on Legislation as well, because it is more expedient and “economical” if the parliamentary commissioners express their views on a legislative anomaly in the preparation phase, rather than having to contest the constitutionality of an already promulgated legal regulation.
Consequently, below we endeavour to provide an overview of this peculiar area of the work of the parliamentary commissioner, while also expounding our views on some important legal regulations.
It is our starting point that in a modern state the relationship of Parliament and public administration has changed fundamentally. In the era of “party parliaments”, the governing parties which possess the primary political power place such a power factor at the head of public administration which has as its duty not only the execution of decisions in the service of political power, mere “social technique”. Governments have long “surpassed” the notion that they should be the tools or executors of the will of legislation; on the contrary, they take on an ever more active role in the identification of public objectives, the evaluation of value considerations (principles of justice) relating to the redistribution of the intellectual and material goods of society, and laying the professional foundations for such decisions.
In light of the experiences of Hungarian and international public law, we cannot help agreeing with the noted scholar of economics who emphasises the radical change in the role of the state in the twentieth century,[10] which, in his view, is no longer only an onlooker or mere “guardian” but, in a value constituting, balancing, stabilising manner, the most active designer, shaper of the redistribution of economic goods and human public services, the supervisor of “direction”, etc.
Literature also points out that the governmental-ministerial sector is the intermediate range where politics and public administration “intermingle”, inextricably intertwine.[11] This increase of political and administrative power is concentrated in the top public administration bodies, the governments: it is evident that an increasing portion of legislation is moved to the competence of the government, most laws are also initiated by the government side, while the parliaments embodying the government majority often merely “sanction” the government will.
This kind of excessive government power is markedly present in legislation: not only because the overwhelming majority of legal regulations are the “products” of governmental administration, but there is also a general tendency for legislative initiatives of representative or legal protection entities to be channelled, after a while, into the legislative workshops of government entities, primarily in order to improve the chances of their adoption. At which point they become subject to the peculiar scheduling of the relevant administrative staff, which reflects the rather confused combination of pressure for time and protraction for no rational reason, and also, often in the phase when technical discussions are over and consensus would be possible, the “orders” of political decision making centres to reflect lobby interests. On the other hand, the summary criticism prevalent in the nineties, that the deficiencies of legislation are attributable to the professional and qualification shortcomings of the drafters, is no longer valid.[12]
As public administration is a continuously working, institutionalised and professional implementation of public objectives relying on the will of the elected political autonomies of the time (local, regional, national), it must produce millions of public power or public service decisions, also assuring their implementation and control. Thus neither the professional nor the technical or social (non-governmental) elements can be removed from the bestowed legislative process; the question is, in line with the nature of the specific regulatory subject, the optimum extent of “say” in such matters through the operation of a co-ordination mechanism which, especially in case of comprehensive draft legislation, allows for absorbed consideration.
If we start from the most authentic task of the ombudsman, the role of protecting fundamental rights and controlling public administration, is it not a natural desire, rather than wanton accumulation of competences, that the ombudsmen are given the right to participate in the drafting of every legal regulation affecting fundamental rights, within the “normal” administrative circulation process?
The following arguments support that thesis:
a) from among the entities of legal protection, the ombudsman has the broadest overview of all sectors and acts of public administration (public service),
b) he has such an assisting, supporting, awareness raising, intermediating, informing attitude that other participants in legislation cannot boast of, that is, in the duality of the government and the civil sectors, the ombudsman is always closer to civil society because of his high social acceptance and also due to his special legal protection (interest protection) tasks, as, (unlike public prosecution, for instance), he is “triggered” not only by infringements in the sense of itemised law but also by any “inequity” committed by public power which places, or threatens to place, citizens or their organisations into a vulnerable position,
c) he is not subject to government discipline determined by the political power structure; on the contrary, he can always focus on general human values and interests, active solidarity with the intended beneficiaries of a legal regulation.
The complaints received from various groups and members of society relating to legislation, often expressed as norms, also underscore the validity of our attempts. Therefore in our view no open legislative system could dispense with the professional and social experience of the ombudsmen, in the field of legislation driven primarily by central, government administration. In this light it is regrettable that the new Act on Legislation, if approved, will continue to deny the parliamentary commissioners that role.
4. A practical example for the possible, or actual, justification of the opinion of the ombudsman in the legislative process
Below we wish to present a case where we had to appeal to Parliament for the amendment of a provision in the Budget Act which was worded controversially. We would not want to create an impression that we would arrogate to ourselves the right to control Parliament in any respect; however, the codification error described below could have been avoided if we had had the opportunity to express our opinion in the course of the preliminary discussions of the bill.
One of the major achievements of Hungarian minority policy is that, after the assimilation attempts of prior decades, today the right to use of the mother tongue is indisputably provided to minority communities. The state promotes the fostering and passing on of the mother tongue primarily by providing opportunities for minority education and giving financial support to the written media.
However, as we noted, these measures exert their influence mainly within the minority community, and they are not sufficient to assure the use of minority languages in everyday live. Public administration has an especially large backlog, as in official administrative proceedings minority languages can be used only in exceptional cases, if at all. It is a common argument that this situation is attributable simply to the low number of civil servants with language skills and, related to that, the deficiencies in language instruction. This statement is fundamentally true, but we must also add that a greater emphasis on the level of government policy on this issue would be indispensable for the increased enforcement of the right to language use. Naturally, this entails not only additional funding but also an attitude to these issues involving more consideration and attention.
Due to the practical shortcomings of law enforcement, the provisions of the ARNEM “go live” often only if minority rights are also incorporated in the legal regulation relevant for the matter concerned. (We should refer to the official registration issues mentioned in previous reports, where the practice, which was clearly incompatible with the provisions and spirit of the Minorities Act, could be redressed only by amending the legal regulations governing official registers). This is objectionable also because in the legislative processes of recent years the language rights of minorities were tabled only in exceptional instances, for instance when the ARNEM and the related regulations were amended. As the example below shows, the issue of language use can be “foregone” even during the drafting of such a legal regulation requiring special care as the Budget Act.
We were surprised to find in Act LVII of 2002 on the Budget of the Republic of Hungary for 2003 (Budget Act) that, according to Section 10 (6) of the Act, „Entry is free of charge for persons of Hungarian mother tongue visiting the building of Parliament”.
Probably the idea behind this general but ambiguous wording was the intention to allow not only Hungarian citizens but also Hungarians living outside Hungary to visit the Parliament building free of charge. However, the grammatical analysis of this unfortunate wording may lead to the interpretation that Hungarian citizens of other than Hungarian mother tongue will have to pay a fee to visit the building.
Members of the national and ethnic minorities in Hungary have the fundamental right to identify themselves as not having Hungarian for their mother tongue. Language is an attribute to the individual and community identity of national minorities, an inseparable part of it, which is the most obvious characteristic of their material and intellectual culture, tradition and minority existence.
This is why Section 10 (6) of the Budget Act violates the fundamental constitutional rights of minorities. Constitutional principles clearly mean that legal regulations may not contain adverse discrimination against any Hungarian citizens based merely on their mother tongue.[13]
Our examination of the process of adoption of Section 10 (6) of the Budget Act revealed that the budget bill submitted by the Government in 2002 under the number T/1220 did not contain the contested passage, and it was inserted into the Act pursuant to the proposed amendment submitted by the Budget Committee of Parliament under the No. T/1220/1496. The records also showed that the representative of the original submitter of the bill also agreed with the proposed amendment.
In our opinion the legislator had no intention of discrimination, and we received no indication that the member of any national or ethnic minority in Hungary would have been subject to adverse discrimination when entering the Parliament building.
In view of the above, we considered it sufficient to call the attention of the Ministry of Finance to the violation in the course of the drafting of the Budget Act of 2004, and to make a legislative proposal to redress this issue in the future. We have sent out letter to the chair of the Budget and Financial Committee of Parliament.
Acting upon our proposal, Parliament, upon the initiative of the submitter of the bill, regulated this issue in compliance with the constitutional consideration we raised in Section 15 (7) of Act LCVI of 2003 on the Budget of the Republic of Hungary for 2004 and the three-year general government framework. The relevant provision of the Budget Act was approved with the following wording:
„Entry into the Parliament building shall be free of charge for Hungarian citizens, persons of Hungarian mother tongue and, as of the entry into force of the Act promulgation the convention on the accession of the Republic of Hungary to the European Union, the citizens of the Member States of the European Union.
[6] In the course of our work as parliamentary commissioner we have encountered complaints against the discriminative installation of public utilities in various settlements almost each year. Naturally, there are also attempts at positive discrimination in this area: the clean-up of Gipsy ghettos is an increasingly pressing task, which is recognised and supported by the state as well.
[7] As we mentioned before, the extent of support may also be 90% of direct costs if the Gipsy minority self-government (Roma interest representation organisation) participates in the organisation of such employment.
[8] In the Penal Code community service has been a punishment in its own right for over 10 years, its implementation being supervised by the probation officer network, as opposed to the community service known in the law of tort.
[9] To the best of our knowledge, the Ministry of Interior proposes to delete community service from tort law.
[10] E. Forsthoff: Lehrbuch des Verwaltungsrechts. Allgemeiner Teil. Munich and Berlin, 1958. p. 1.
[11] Pesti, Sándor: A kormányzati döntéshozatal mechanizmusai Magyarországon [The Mechanisms of Government Decision Making in Hungary]. Jogelméleti Szemle, 2000/4.
[12] Kilényi, Géza: A közigazgatást érintő ellenőrzési fajták rendszere [The types of control in the field of public administration]. In: A közigazgatás ellenőrzése, Booklet 6. Unió, Budapest, 1996., p. 12.
[13] Section 70/A of the Constitution declares that adverse discrimination based on race, colour, gender, language, religion, political or other opinion, national or social origins, financial situation, birth or on any other grounds whatsoever is punishable by severe sanctions.
Chapter III
Theoretical and practical limits of the free expression of opinion – interpretation of the scope of authority of the parliamentary commissioner
1. On the regulatory powers of the ombudsman
Below we shall try to answer the question, which is closely linked with the aforesaid, whether the activities of the ombudsman are compatible with the exercise of regulatory powers, also taking into consideration the fact that the answer to this question in the negative is generally explained by referring to the substantive features of the “classic” ombudsman institution.
We stated in the draft bill on equal treatment prepared in the autumn of 2000 that effective action against discrimination in Hungary requires the adoption of mandatory, individual decisions of a public power nature. Fortunately, the persons responsible for the drafting of the legislation shared this conclusion, but, in contrast with the opinion of the minorities ombudsman, they “created” a new anti-discrimination organisation to exercise the regulatory powers by adopting the Act on Equal Treatment.[14]
Decision on regulatory powers is within the discretionary powers of the legislator. Despite the arrangement adopted in the Act on Equal Treatment, we consider it appropriate to summarise here the arguments relating to the type of organisation best suited to exercise those powers.
What are the arguments for the minorities ombudsman (and the expansion of the authority of other parliamentary commissioners and making them regulatory)?
· First of all, there is the practical consideration that the new office will lack the eight years of experience of the minorities commissioner, therefore it is likely to exercise its regulatory powers considerably less efficiently (and with less wisdom) than the minorities commissioner would. They could start the work of the minorities commissioner all over again, probably being unable to exploit the conclusions arising from the work of the ombudsman so far, and potentially the recognition of certain types of discrimination would also be less easy in his its procedure. Relying on international examples and his own experiences, the minorities ombudsman introduced into the Hungarian law and applied the concept of indirect discrimination from the very start. (In any event, the practical application of the concept of indirect discrimination by the ombudsman would be more evident and obvious than an arrangement were the term is defined for the anti-discrimination authority only in the Directive and the amendment of the Labour Code.
· Another, also practical, problem could arise from the unintentional duplication of powers: as the new office has been given regulatory authority to investigate and sanction anti-discrimination issues, while the competences of administrative bodies according to the subject of cases have been retained, it is to be feared that the role of the minorities commissioner will be limited to signalling in issues relating to ethnic discrimination.
· We have also noted on a number of occasions that in Hungary the various types are discrimination are not of the same gravity: discrimination on ethnic grounds (primarily in a hidden or indirect form) is prevalent in almost every walk of life, but primarily in the world of labour, furthermore, in case of the minority group most affected by unequal treatment, the social risk of initiating proceedings and proving the violation is greater. Therefore, in light of this sociological fact, legal regulation cannot accord treatment of equal gravity and methodology to each type of discrimination. Apparently, the act on equal treatment has made good the promise of “equally little to every minority group”.
The extremely high proportion of discrimination on ethnic grounds in itself does not justify the reduction for any reason of the protection offered to persons suffering from other causes of discrimination, as the requirement of the protection of human dignity must be equal in case of every type of discrimination.
The existence of a separate entity to address complaints of ethnic nature, however, cannot be justified. It would be expedient to leave cases of discrimination on national-ethnic grounds in the remit of the minorities commissioner, and cases of discrimination on other grounds should be placed under the competence of the general ombudsman. Naturally, in respect of discrimination-related issues the powers of the general ombudsman should be expanded similarly to those of the minorities commissioner.
We do not share the view that the majority of complaints will be sent to the new authority. The possibility to make binding resolutions in itself does not make this attitude probable, because for complainants the real remedy for their grievances is in tangible reparation (e.g. a compensatory payment) rather than in repressive sanctions (fines). However, the Act on Equal Treatment contains no such arrangements.
Consequently, there is no danger that the establishment of a new authority to act in cases of discrimination would result in the institution of the minorities ombudsman becoming insubstantial. The independence of the ombudsman of the “factors of public power”, his impartiality, the professional and moral authority gained in the eight years of his operation, the effectiveness of his past proceedings despite the absence of any public power certainly guarantee that.
2. Possibilities of the expression of the ombudsman’s opinion respecting the work of judicature
There were previous examples, as noted in our past reports, where the authority proceeding in a certain case questioned the competence of the parliamentary commissioner. An example from years ago was our disagreement relating to the public prosecution, another example is the issue of the possibility for the parliamentary commissioner to examine and comment on the judgement of the courts and the activities of the court administration organs. The ability of the ombudsman to examine the work of the public prosecution was clarified by the amendment of the provisions of the Ombudsman Act to change competences, while the competence disputes affecting the judgement of courts and other dimensions of the court’s operations are still unresolved.[15]
The experience of recent years indicates that we have received complaints where the complainants generally assume that, because of their affiliation to some minority or for some other reason, the court proceeding in their case was prejudiced or adopted a discriminative decision. In case of complaints filed in writing, we are forced to turn down the complaints referring to the “prohibition” in the regulation of competence in Section 29 of the Ombudsman Act, or we can only inform them about the ordinary or extraordinary legal remedies available in their case.
On the other hand, we are pleased to see that today the public opinion and political power factors as well as the senior management of the bench are inclined to the notion that, while unconditionally respecting data protection rules, the constitutional protection of the independence of judges should not mean immunity from criticism in the moral, professional or political sense, or from research. A solution appears to be emerging to the paradoxical situation that while, as the general rule, court procedure is public, the general public knows very little about the internal workings of this organisation.
Though no one questions the necessity and indisputable principle of judicial independence, there is frequent criticism in various public forums and in the specialised literature of the extremely lengthy judicial procedure and the “quality’ of judgements: the judicial body has “lost touch with reality”, “operates without social control”, “has placed itself outside society’, etc.
In our view, while we do not intent to bring into question the competence prohibition laid down in Section 29 (1) f) of the Ombudsman Act, it would be necessary to regulate, and make clear to the commissioners, the scope and mode of their “communications” pertaining to the work of the judiciary. A – well prepared – conciliation procedure with the participation of the National Judicial Council, the Supreme Court, the country chairpersons, and the ombudsmen could certainly achieve consensus, for instance, on the following issues:
a) the judicial statistics compiled by the NJC should be regarded as data of public relevance, therefore their release to the ombudsman for examination cannot be refused claiming the principle of judicial independence,
b) due to the requirement of publicity, which is part of the constitutional requirements of a „fair” procedure, the forwarding of a copy of a final court decision to the ombudsman cannot be rejected,
c) independence is not curtailed if, in case of an ongoing court procedure, the ombudsman discloses such credible facts or data knowledge of which may influence judgement on the merits of the case or may be conducive to avoiding obvious factual errors,
d) independence is not curtailed if, in respect of non-final decisions on the merits of a case, the ombudsman communicates to the complainant or the legal aid organisations representing him that in his view the court decision is based on the misconstruction of the law, or, if justified by the social significance or controversial nature of the case or by the gravity of the constitutional anomaly concerned, publishes such opinion.
If consensus on the aforementioned issues (the list could of course be expanded) could be reached between the parliamentary commissioners and the representatives of the bench in the form of a co-operation agreement, these rules and the resulting practice could blaze the trail for an amendment of the Ombudsman Act to clarify at last the limits of the ombudsmen’s authority and their possibilities in the field of judicature.
3. Prejudice in the media
In the reporting year we also received complaints about the “racism” in radio and television programmes.
On 27 January 2003, a commercial television channel broadcasted a programme with the title „The Roma Take the Rap”.
Having seen the programme, we turned to the Complaints Committee of the National Radio and Television Board (ORTT), with the following observations:
The starting point itself is untoward: the title of the programme and the introduction suggested as a fact that many Hungarians dislike the Roma, creating the impression that this must be for a reason, there is some problem with them. This stereotypical starting point put the Roma participants on the defensive: they hade to plead that the Roma are honest, they do not stink, that they would work if they had the opportunity etc.
The MC asked closed questions, suggesting the expected answers. For instance: Do you think you are a better person? Is it only the view of your own environment, or is it the case everywhere? What are your main arguments that they do not work and are dishonest? Finally, you find a job if your try, don’t you? Would you tolerate them more if you lived further away? This made the MC appear “biased”, strengthening the anti-Gipsy camp. We considered it important to underline that several of his questions specifically enquired into the responsibility of the Roma, their own fault, for the approach to them. (It is a fact that he mentioned the word ‘tolerance’ on two occasions, but due to the whole tone of the programme, it sounded completely unconvincing, nothing supporting this notion – not even his own attitude.)
A number of sentences with racist content were uttered in the programme; indeed, proving/disproving these was the focal point of the discussion: the linking of the “race” with particular characteristics, superiority or inferiority, the right of the superior to punish and exclude the inferior race, and to safeguard the purity of the blood, the prohibition of “mixing” of races – these were the focal issues.
A multitude of primitive, generalised statements and inadequate (therefore pathetic, feeble) protestations against these featured in the programme, while the MC specifically encouraged the voicing of ignoble views: partly with his questions and partly by not, or not sufficiently, rebuking extreme statements.
By the selection of the topic and the persons invited, the programme consciously undertook to present an extremely complex social issue in the public interest superficially, without striving for diversity, factuality and objectivity, with an eye to entertainment only.
The editors of the programme were also aware that the programme would be suitable to deepen the already strong prejudicial attitudes against the Roma in Hungary and to incite hatred, because they prepared for the programme with stereotypical questions and with the invitation of persons capable only of emotional “arguments”.
The editors were also aware that, by giving air time to summary, generalised, therefore by definition totally unfounded statements about the Gipsies, they would insult an entire human community.
The Complaints Committee admitted that the programme presented an extremely complex, sensitive issue affecting the entire society and in the public interest in a superficial, irresponsible manner, aiming only for entertainment. It also declared, however, that due to its genre, the programme cannot be expected to meet the criteria of diversity, factuality and objectivity.
In connection with another television programme broadcasted by the same commercial channel with the title “My Big Fat Roma Wedding”. In the programme Gipsies, inter alia, stole cars, had fights and consumed marihuana; the authors of the programme in general depicted the Roma as an immoral, alcoholic, thieving, work-shy community unable to comply with social expectations and norms, while the RT Act mentions, first among the constraints of broadcasting, the requirement of respecting human rights and compliance with the prohibition of inciting hatred and of the open or covert insulting of minorities.
In theory, we could have only turned to the Complaints Committee, but after the programme was broadcasted, there was such public uproar (several unconnected private persons and a number of NGOs requested us to start an enquiry) we thought that only a sanction by the ORTT could recompense the offended community sufficiently.
With the same reasoning as ours, the ORTT suspended the broadcasting rights of the television for 30 minutes.
A citizen complained about a commercial radio station because in their programme on the segregated hospital treatment of Roma women, “because of the intention of the authors, all the misconceptions and prejudices were publicised at their most extreme, without their substantive refutal”.
Having listened to the recording we received, we concluded that even though neither the incitement against a community as said down in Section 269 of the Penal Code nor the violation of the dignity of a community laid down in Section 3 (2-)-(3) of the RT Act could be established, the MCs did violate several sections of the Operating and Broadcasting Rules of the Radio which sets forth more stringent programming principles than legal regulations do, subordinating the freedom of expression of opinion of the MCs to humanity and other noble notions.
For instance, Section 45 (2) of the Rules sets, in respect of the entirety of every (not only news) programme, the objective of impartiality and balanced presentation, and extend this expectation to individual programme items, irrespective of other items.
The authors of the programme violated that rule because they wanted to hear the audience confirm their preliminary, rigid, undifferentiated concept. The opinion they focused on: the different cultural background of the Gypsies, the different hospital visit customs justified the segregating practice of the hospital, therefore Roma patients suffered no disadvantage; they related to listeners phoning in accordingly: they “hushed down” the persons voicing different opinions, while gave free scope to persons of the same conviction as theirs.
Accordingly, we called the attention of the editor-in-chief of the radio to the need to place more emphasis on complying with the supervision obligation set forth in Section 33 (2) of the Rules. He promised to do so.
The above cases also show that the communities of persons created by the self-affiliation defined by racial, ethnic, religious or other identities need protection. All the more so as one aspect of the self-realisation of individuals is affiliation to a community, therefore it is undoubtedly a personal right.
[14] As indicated above, the new authority will commence its work only on 1 January 2005 pursuant to the law.
[15] As mentioned in this report, the possibility to appeal to the public is an important element in the “arsenal” of the ombudsman. In this case the ombudsman, in addition to being the special control entity of Parliament, the supreme organ of the state and representation, is forced to hold a mirror to the entire society in the context of constitutional rights. The opinion of the ombudsman should not be confused with the views of the executive power and of politicians; the two are fundamentally different. In full respect of the decision making competence of judges independent in their judgement, the parliamentary commissioner has the right, or rather obligation, to assess the work of any organisation of the state, as thereby he fulfils a social “mission”.
Chapter IV
The general position of equality
1. Clarification of legal terms relating to non-discrimination
In the course of the drafting of the Act on Equal Treatment, the draft bill prepared by the Ministry of Justice was subjected to a broad “social discussion”. A number of NGOs and minority interest representation bodies expressed their views, and naturally the legal protection organs of the state also put forth recommendations in connection with the draft.
Real discussion of the merits, indeed, a dispute emerged in the course of the drafting process between the codifying staff of the Ministry of Justice and our office, mainly in respect of the individual right to a minority identity.
The drafters consistently talked about the freedom to choose identity, while we would have like the law to contain the freedom to affiliate with and express identity.
As we repeatedly stated in our previous reports, choice can refer only to existing things, especially in the context of the identity of a person in some aspect.
According to international legal norms, a person belonging to some minority has the choice to decide whether the state should treat him as belonging to a minority or not. Thus the right of choice includes the possibility for the individual to reject being registered as a member of the minority, to be treated as such; therefore he also has the right to denounce, on his part, the rights accruing to members of the minority, such as exercising the right to self-governance.
In contrast, the individual may not freely decide to be classified as a member of a minority group that he does not actually belong to. There is no free transit among identities, and this is especially true for racial, age or ethnic affiliation, therefore the individual cannot decide without any constraints (arbitrarily) to be treated as someone who he is not.
We know that the example is unrealistic, but men cannot demand society to treat them as women for instance to be exempted from the compulsory military service, and there is a natural borderline in case of national and ethnic minorities as well: even if a person has multiple identities (feels to belong to more than one nationalities), he may not be the representative under public law of more than one minorities at the same time: he has to decide in the “colours” of which minority he wants to engage in political activity.
The “freedom to choose” identity, its declaration in law and verification might have the eventual effect that the supreme organ of the state, Parliament legitimise or allow such extreme cases of abuse as for instance the Gipsy minority self-government election of 2002 in Jászladány.
We can highlight as the main benefit of the Act on Equal Treatment that it clarified a number of basic concepts relating to the law of non-discrimination. Thus the law defined the term “illegal separation”, which has hitherto been know as “segregation” in the common lore and in legalise.
According to Section 10 (2), such a conduct which separates individuals or groups of individuals from others without any reasonable, objective cause constitutes illegal separation”:
Despite the seemingly unambiguous definition, we should like to present in the following chapters, concentrating on public education as a special field of public services, that illegal segregation may take diverse forms difficult to identify and even more difficult to prove.
2. Segregation, a special form of discrimination
Thus segregation means illegal separation; its essence can be summarised as the application of peculiar rules to a person or persons and their different treatment from the others. Separation has legal, reasonable cases as well, for instance when in educational institutions, in the course of the teaching of foreign languages or languages of minorities in Hungary, students on the same level of skills can be separated to assure the most efficient instruction.
2.1. Adverse discrimination in education – the segregating practice or setting up and operating ‘small classes’
In recent years we have repeatedly addressed in our reports the various discrimination phenomena and forms of segregation present in the education of Gipsy children. The segregated education of Gipsy children may result from selection among or within schools, i.e., where the educational institution organises segregated classes or study groups for them based on “professional reasons”.
Separation within a school may have reasonable causes justified by educational reasons, but this instrument can also be abused.
As we noted in our previous parliamentary reports, the organisation of the Gipsy minority education programme, even if it takes a legitimate form, has the germs of abuse in it. The picture is clear: the public education institution (and the local government maintaining the institution) is entitled to so-called supplementary normative transfers for the operation of minority education, thus the institutions have a vested interest in running minority education programmes. However, the “demand” for the separate education of Gipsy children does not come from the parents of Roma children, while non-Roma parents often ask the management and teachers of the school to assure that their children do not attend “mixed classes”.
Before elaborating on this subject, it appears necessary to give a brief historical overview: in the content elements of Gipsy minority education the considerations of national minority and of remedial education were “mixed” for a long time. In addition to the controversial regulation of content, the unprofessional implementation of the Gipsy minority education programme also caused serious problems, resulting in the segregated education of Roma children being financed by the central budget.
Eventually, in line with our recommendations, the Minister of Education, in his Decree No. 58/2002. (XI. 29.) OM, amended the Decree No. 32/1997. (XI. 5.) MKM on the Publication of the Guideline for the Education of National and Ethnic Minorities in the Kindergarten and the Guideline for the Education of National and Ethnic Minorities in the School. This eliminated the possibility of organising remedial education claiming, and in the framework of, Gipsy minority education.
In this report, because of the topicality of the issue and its relatively unexplored nature, we whish to discuss another, also prevalent form of segregation resulting from intra-school selection, the organisation and operation of the so-called “small classes”, especially as in 2003 it became obvious that this educational structure also allowed for segregation on an ethnic basis.
By way of introduction let us describe a complaint which can be regarded as typical in this field:
The complainant objected to the separate instruction of Roma and non-Roma children in the elementary school. Classes A and B had non-Roma children, while the small class C was for Roma children.
The headmaster of the school informed us that 14-15% of the students of the institution were of Roma origin, but in the small classes that proportion was considerably higher at 70-80%. In contrast, in the full-sized parallel classes the ratio of Roma children was only 5-7%. The representative body of the town decided which schools of the settlement should operate small classes.
In light of the self-explanatory statistics we had to examine how the legitimate, i.e., reasonably explainable, arguments for the creation of small classes facilitated the placement of mostly Roma children in such chasses.
We agreed with the headmaster that it would be better for the students and for the schools if children requiring small group education could study in their school of geographical competence, in an integrated form. Thus the remedial tutoring of an acceptable number of students per school, and per class (no more than 2-3 persons per class), could be arranged in a more effective format.[16]
Our enquiry revealed the following findings:
· the present practice of organising and operating small classes, like Gipsy minority education, or the teaching of children with particular educational needs in classes using different curricula, may result in the segregated teaching of Roma children;
· teaching in small student groups is generally useful for the individual development of children, and should be maintained, therefore the abolition of small classes exclusively because of the appearance of segregation is not justified;
· however, we cannot definitively rule out the suspicion of segregation in connection with the practice of organising and maintaining small classes, because the significantly higher ratio of Roma children in small classes than in normal-sized classes in the same year constitutes indirect adverse discrimination.
Pursuant to Section 4 (11) of the Public Education Act still effective at the time of the enquiry, any provision, measure, condition or practice which apparently assures identical rights and imposes identical requirements on everyone but which places a person or group of persons in an adverse position, or illegally segregates them, in comparison with other persons or groups in a comparable situation, constitutes indirect adverse discrimination.
Pursuant to Section 4 (12) of the Public Education Act before its amendment, differentiation clearly resulting from the nature or characteristics of educational work does not constitute adverse discrimination as long as it happens using the necessary instruments to attain legal objectives, in particular any education, instruction and education or measure organised pursuant to that Act or its implementing decrees. In our view, the operation of small classes resulting in the segregated education of Roma children does not constitute an “instrument” necessary for the adequate education or instruction of children suffering from difficulties in terms of adaptation, learning or behaviour. Indeed, the current practice of maintaining small classes may result in a constitutional anomaly if it brings about the segregation or adverse discrimination of Roma children under the guise of a legal objective.
The segregation of Roma children in small classes is not limited to the cases we investigated. Similar problems occur in other educational institutions as well. This is probably a general, nation-wide phenomenon, but we do not have sufficient information to prove this. To the best of our knowledge, no comprehensive study or survey has been conducted concerning this issue.
However, having realised the importance of the problem, we recommended to the Minister of Education that he commissions a comprehensive analysis and assessment of the following issues:
· how are small classes organised in educational institutions,
· whether education in small classes achieves its objective, i.e., to what extent individualised education and instruction promotes the development and educational integration of students, what chances children have for successfully completing and continuing their studies;
· whether their practical operation results in the segregation of, and indirect discrimination against, Roma students.
Therefore, according to our recommendation, it should be surveyed and examined in how many settlements and in what format small classes following a general curriculum are organised; the ratio of members of the Roma minority in such classes; the considerations applied in designing their geographical competence for enrolment; in what ratio, and upon whose initiatives, children are moved back from small classes to full-sized classes.[17]
The problems relating to the organisation of small classes also indicate regulatory deficiencies. Therefore we also proposed to the Minister of Education to have regulatory and financing safeguards designed to assure that education in small classes can under no circumstances result in the segregation of Roma children; in this context, the possibility of educating children suffering from difficulties in adaptation, learning or behaviour in an integrated format and the organisation of small classes in an integrated form should also be examined (i.e., the integrated education and instruction of children with and without adaptation, learning and behavioural difficulties in small classes).
In our letter to the Ministry of Education we clearly stated our position that the disproportionately high ratio of Roma children in small classes may crate the misconception that the majority of them are “backwards” children afflicted by adaptation and behaviour problems, therefore they are in need of development and remedial instruction, which can reinforce prejudices against Roma children.[18]
Of course the problem also raises the question whether the methods used before enrolment to examine the individual capabilities of pupils are appropriate for their function. We have criticised the currently used tests on several occasions; there was suspicion that they do not properly measure the performance of children who are different from average in terms of their social or cultural background. Practitioners recommend, in addition to or instead of the existing tests, the continuous examination of the child in his own natural environment for an extended period of time.
Therefore we proposed to the Minister of Education that the examination methodologies used to test children with adaptation, learning or behavioural difficulties should be re-assessed to find out if they adequately measure the performance of children who are different from average in terms of their social or cultural backgrounds.
Finally, more teachers would be needed who could assume leading roles and increased responsibility in the prevention and termination of segregation; therefore we also recommended that the current practice of teacher training should be reviewed, together with institutions of higher education, to find out whether students are appropriately prepared for the teaching of children with adaptation, learning or behavioural difficulties; whether they master pedagogical methodologies which allow them to implement differentiated education and individual development in an integrated format in normal or small classes with general curricula.
In its response, the Ministry of Education explained that in their opinion they had already created in legal regulations the conditions for the “development” (special education) of disadvantaged students in an integrated format, and the financing arrangement also encourages this kind of organisation of education.
They hope that the application of those regulations would reduce and, within the foreseeable future, eliminate adverse discrimination and segregation due to the disadvantaged position of students in education.
However, as an important step towards eliminating the practice of organising and maintaining small classes with the result of the segregated education of Roma children, the Ministry of Education, as a result of our enquiry, undertook to survey and evaluate the problems indicated. Before the start of the next school-year they will assure that the background institutions of the Ministry engaging in research conduct a comprehensive survey of the practice of organising and operating small classes in educational institutions. We hope that, with the participation of the experts of the Ministry, such a practice of organising small classes can be devised which maintains and reinforces the pedagogical benefits of education and instruction in small groups while preventing the school segregation of Roma children and simultaneously assuring their integrated education.
2.2. Private pupil status as a potential source of segregation
For years, we have been receiving complaints about conversion into private pupil status. In our previous reports we described the relevant legal regulations in detail, now we will only touch upon this briefly. According to the effective legal regulations, private tuition is possible in two instances:
· on one instance, a child may become a private pupil upon the request of the parent, due to some special reason relating to the family or the personality of the child;[19]
· in the other instance, this can happen for objective reasons pursuant to the decision of an authority, in particular if the child suffers from physical, sensory, mental, speech or other disability or adaptation, behavioural or learning problems, and in the view of the relevant expert and rehabilitation committee or of the educational consulting service the continuation of his studies as private pupil is justified.
The possibility of abuse is present also in the case of the private pupil system, that is, the school may remove certain children in a manner constituting ethnic discrimination.
The parents who turned to us generally complain that the school or the local government “convinces” them with soft or drastic means, for instance by threatening to take the child into state care, to request their child to be moved into private pupil status. Unfortunately, in the majority of cases the parents did not have adequate information about the rights and obligations entailed in private pupil status, and in practice private study often leads to the termination of studies.
In our experience mostly Roma parents have contacted us with such complaints, generally attributing the school’s actions to their ethnic origin. Therefore our enquiries must also clarify whether private pupil status is used as a means of segregation and adverse discrimination.
In cases where the motive of “getting rid of” the child was proven, the ombudsman called on the authority concerned to fulfil their obligation of enforcing rights as intended.
However, in most cases it is practically impossible to prove discrimination: to counter the claims of complainants, the school generally has the written request of the parents for their child to become a private pupil, while there are neither written documents nor any other proof available about the events preceding the “request” and the real causes.[20]
In recent years, partly as a result of our comments, various legal safeguards have been incorporated into legal regulations. According to a regulation effective as of 10 February 2001, after receiving a request from the parent, the headmaster of the school must obtain the position of the competent child welfare service whether such a decision would be detrimental to the student. This rule is an important safeguard as the participation of the child welfare service may prevent the misleading of parents by the educational institution; furthermore, the expression of the parent’s intentions will be supplemented by external (professional) control.[21]
In 2003, a group of parents complained to us because they considered it injurious and illegal that their children were forced to become private pupils.
In our enquiry we established that the decision affected eight children in total. It was also proven that in each case diversion into this route of meeting the compulsory education obligation happened upon the request of parents: this was evidenced by the parent’s statements sent to us by the public education institution.
Section 23 (1) of the aforementioned Decree 11/1994. (VI. 8.) MKM provides:
„If the student, by the choice of his parent as regulated in Section 7 (2) of the Public Education Act, meets his compulsory education obligation as a private pupil, the headmaster of the school, within three days of the communication of such intention, shall acquire the opinion of the child welfare service competent at the residence of the student to decide whether such an arrangement is detrimental to the student. The child welfare service shall send its opinion within fifteen days.”
In response to our letter requesting such opinions the headmaster explained that they had not been prepared; instead, he had always discussed private pupil status with the town clerk. This provision of the legal regulation entered into force on 10 February 2001, therefore its enforcement would have been compulsory in case of transfers into private pupil status after that date. In our case, the provision covered six out of the eight children.
At the conclusion of the enquiry we established that the decision adopted in violation of the legal regulation, i.e., without soliciting the opinion of the child welfare service, was null and void, which means that the situation existing before the violation had to be restored. In our initiative we requested the school to contact the parents concerned, inform them that transfer into private pupil status occurred in violation of the legal regulation as the school failed to request the opinion of the child welfare service. The parents of the children who were moved to private pupil status after 10 February 2001 must be asked again if they still maintain their request. If the parents still request private pupil status for their children, the expert opinion of the child welfare service must be obtained whether this would be detrimental to the children.
The school accepted our initiative. They informed us that two parents took the opportunity not to request private pupil status for their children. These children have resumed school attendance in the autumn of 2003. Another four children have already transferred for studies in another school or completed their studies.
The case appears to prove again that some of the parents are forced into requesting private pupil status, and they do not select this mode of meeting the compulsory schooling obligation for their children completely voluntarily, in full knowledge of all the consequences.
2.3. Other forms of reprisal in public education
In 2003, like in previous years, we continued to receive complaints from parents where they objected to the improper tone used by some teachers of the school with their children. The parents claimed that in these cases their children had to suffer humiliating statements and insults concerning their ethnic origin.
Pursuant to Section 10 (2) of the Public Education Act, the personality, human dignity and rights of the child or student must be respected, and protection must be assured against physical as well as mental violence. Section 19 (7) h) of the Act provides that the fundamental obligations of teachers include the education and instruction of the children in their care and, in that context, respect for the human dignity and rights of children, students and parents. Thus there are strict limits to the disciplinary tools available to the teacher, which do not allow him to violate the human dignity and personal rights of students.
It is generally true in these cases that a successful enquiry is difficult, and often impossible, to conduct: the claims of the complainants and of the representatives of the examined educational institution mostly contradict each other.
In most cases schoolmasters deny the possibility of utterances violating the dignity of children in their institution. In such cases, the ombudsman requests the headmasters to point out to teachers at staff meetings that it is their duty to respect the personality and human dignity of students, and to inform parents at parent-teacher meetings that they should turn to them if such complaints arise, furthermore, to take any other measure necessary to prevent such occurrences.
In one of our cases the investigation of the headmaster verified the violation committed by the teacher. The complaint was submitted by the parent of one of the students, resenting the insulting and humiliating comments made by the teacher about his child, and also assuming that this would not have happened had the child not been of Roma origin.
At our initiative, the headmaster of the school held a hearing in the absence of the complainant in the class of the student concerned. The statements of the students revealed that the harsh words concerning the studies, diligence and behaviour of the child which the parent complained about had indeed been said. However, in the opinion of his peers, the student was indeed a poor performer and his classroom behaviour also left much to be desired.
According to the students, the teacher did make a reference to the family of the complainant, but did not utter the word ‘Gipsy’ or ‘Roma’. The headmaster also established that other students in the class had also been addressed by the teacher with similar, insulting comments.
According to the headmaster, the teacher concerned is a ‘dynamic personality”, and at times “picks on” certain students or groups of students, but this is never related to the ethnic background of the students.
In order to resolve the problem, the headmaster considered it expedient to arrange a joint discussion with the teacher and the students concerned, and dismissed the necessity of disciplinary action, which, taking into consideration the facts of the case, we accepted.
We established, however, that the teacher, when making insulting, generalising comments about the family of the child, violated his obligation set forth in Section 19 (7) h) of the Public Education Act, which provides: “the teacher has the fundamental responsibility of educating and teaching the children in his care and, in this context, to respect the human dignity and rights of the children, students and parents”.
The report of the headmaster emphasises that in the comments about the family of the child, the teacher did not use the words ‘Roma’ or ‘Gipsy’. The absence of these words in itself does not necessary prove that no discrimination occurred. However, from the information available to us we were unable to establish whether the words of the teacher also alluded, without saying those words, to the origin of the child.
In the reporting period we also received complaints from parents objecting to the fact that their children often spent class hours in the corridor.
A petition signed by thirteen parents complained about the practice of sending students out of the classroom in a school. According to the parents, their children regularly spent classes on the corridor of the school because teacher sent them out as a disciplinary measure. This complaint also raised a number of other issues, and the parents attributed all this to prejudice and discrimination against their Gipsy origin.
We asked the headmaster for explanation, who stated that his colleagues resorted to this method only if the right of other children to instruction would be violated, and denied any adverse discrimination.
Our position published on this issue can be summarised as follows:
· sending students out during class cannot be used as a disciplinary measure; this can happen only if this is unavoidable to protect the rights of others or other rights of the student concerned;
· even in that instance this measure cannot automatically last the duration of the class: its length must be determined on a case-by-case basis;
· the teacher must provide for the supervision of the student who has been sent out.[22]
The school accepted our position and our initiative that in the future they would proceed in accordance with the above.
2.4. Recording the Roma origin of students in the class register
A schoolteacher from a large city, who asked to remain anonymous, came to us with the complaint that a type of class register was still in use which, in its page entitled “Summary statistical data”, in Line 18, contained a question concerning the number of Gypsy students.
The complainant sent a photocopy of the objectionable part of the class register, but deleted the sections that would allow for the identification of the institution, head of the institution and the form-master; and about the “Gypsy” line he stated that it had been “pasted over” in the meantime.[23]
We looked into the complaint jointly with the commissioner for data protection and forwarded our joint position and recommendations for resolving the problem to the Minister of Education.
In particular, we called the attention of the Minister to the fact that if such a class register exists, it can give rise to an infringement as:
· such a line could allow the teacher keeping the register, the form-master to classify someone into the minority exclusively on the basis of external marks.[24]
· it violates several fundamental principles of the Data Protection Act: the target-linked requirement of Section 5 and the rules of fair and legal data recording and data management set forth in Section 7 ()1) a) would both be violated.
Pursuant to Section 18 (3) of the Ombudsman Act, we requested the Minister of Education to examine whether the class registers in circulation contain a line asking for data for the management of which the educational institutions are not authorised, and also initiated that, in light of the findings of his investigation:
· he take the necessary measures to take infringing registers out of circulation,
· he inform schools in a circular that they should not fill in the line that may give rise to infringement.
In his response the Minister informed us that in case of the complaint a unique violation occurred, which was due to “the exceptional manifestation of the carelessness of the head of the institution”. Furthermore, the Minister stated on a theoretical plane: „The contested class register has become completely unfit for use not only because of the identification of the Gypsy minority in the statistical table but also because of the changes in the teaching profession in the past fifteen years.” [25]
Thus the line minister declared the complaint to be a “unique occurrence”, therefore conducted no comprehensive enquiry despite the initiative of the parliamentary commissioner, but promised to take the following measures:
· on the website of the Ministry of Education, he would warn, in a communication, schools to destroy forms with outdated contents and any data collected illegally that might exists, and to comply with data protection rules;
· he would warn the town clerk of the town about the dangers of using outdated forms, and recommend that a legality audit is conducted in this area;
· he would make sure that the firms producing and distributing the largest volumes of printed matter for schools continue to receive the necessary assistance to produce compliant forms.
The legality audit went off to a rough start: the town clerk informed our office, upon our enquiry one and a half months after the letter of the Minister of Education was sent out, that he had no knowledge of any official communication by the line ministry.[26]
Even though the Minister of Education branded the case indicated by the two parliamentary commissioners “unique”, the audit revealed that each of the other 22 elementary schools in the city used class registers containing a line allowing for the registration of Gypsies.[27]
Though our enquiry was limited to a single county, or rather its seat, we might hazard the following assumptions:
1. such registers are used in many schools of the country, and occasionally the infringing statistical lines may even be filled in;
2. the annual review of the printed matter and their amendment in line with legal changes warrants severe criticism;
3. the “review” creates an appearance among the producers and distributors of printed matter, headmasters (and users in general), that the “approved” form satisfies the effective legal and professional requirements in every respect.[28]
According to the effective regulations, elementary schools may even use printed matter compiled by themselves, indeed, they may keep electronic registers, but this liberalism may not be grounds for such infringement, and does not relieve the Ministry from its liability for the school brochures, forms, etc. in ordinary circulation and approved by experts, in view of the fact that the approval makes everyone conclude that the document concerned is official.[29]
In summary, the “class register case” leads us to conclude that the past habits and procedures automatically live on, and the changes implemented in the legal system do not necessarily filter down to everyday bureaucracy, primarily to routine administration.
[16] Of course, in this case the school should provide on its own for the organisation of the development, remedial courses for “problem” children, and to hire teachers or employ external experts with the required skills.
[17] The pedagogical methods used in small classes should also be analysed and evaluated, primarily with a view to their contribution to the individual development and educational integration of students.
[18] The headmaster of the elementary school examined stated that the undesirable ratio of Roma and non-Roma students emerged because “problem” children, including Roma students, are grouped in small classes. In contrast, the tests used in the educational consulting service, just like the ones used by the expert and rehabilitation committees, may also contribute to the high ratio of Roma children among the children suffering from adaptation, learning and behaviour difficulties.
[19] In practice, this occurs generally in case of children with outstanding talent.
[20] Even indirect discrimination is difficult to prove unless every parent requesting private pupil status turns to us with a complaint declares their minority affiliation. Because of the data protection rules, we are unable to prepare comparative studies to prove indirect discrimination.
[21] The new Act on Public Education, which entered into force on 1 September 2003, introduced additional safeguards allowing the public guardianship service to take action in the interest of the student. Cf.: Section 7 (2) of the Public Education Act.
[22] For instance, he must be escorted into the staff room, the headmaster’s office and left under the care of the teachers there.
[23] This appeared to indicate that this line had been filled in previously.
[24] Filling in the “origin line” of the register would violate not only the data management rules of the Data Protection Act but also Section 7 of the ARNEM, because, according to that code section, the affiliation to a minority and its expression is the excusive and inalienable right of the individual. We are convinced that there is a real danger of violation: a statistical figure can be suitable for identification. For instance, in a class of 20, 15 students marked as Gypsy can be identified with great probability, and 20 out of 20 with certainty.
[25] The Minister of Education also informed us that schools procure printed matter annually, using the order forms sent by the printers. “The order forms contain forms reviewed annually and amended in line with the legislative changes”: that is, he excluded the possibility of obsolete and infringing documents being in circulation.
[26] Later we found that the Ministry had sent the letter intended for the town clerk to the chief administrator of the county.
[27] Even though only one elementary school used class registered published in 1988, the class registers printed in 2001 and 2002, which were used in the other schools, were objectionable just the same: these newer registers also contained the line about Gypsy origin.
[28] For instance, one of the affected printing houses wrote about the copy of the class register containing the incriminated Gypsy line that was sent to us that this was from a class register “prepared on the basis of a manuscript approved by the Ministry of Education”, and the town clerk, in his report on the findings of his enquiry, also talked about a class register “checked by the MoE on 18/01/2002”. We should note that in one of the schools of the city affected by the class register issue the expert who investigated the legality of operation in general also raised no objection to the class register in January 2004.
[29] The class registers generally used in the city, therefore probably elsewhere as well, are objectionable not only in respect of minority rights, as they also ask about the workplace and job of parents, therefore they also infringe personal rights and data protection rules.
Chapter V
Maladministration: typical cases of insensitive bureaucratic law enforcement
1. Anomalies of contacts with „official authorities”
In international literature, the bureaucratic, soulless case handling or conduct of public administration is called „maladministration”. In the practice of the parliamentary commissioner for national and ethnic minority rights, we have been receiving complaints about the practice of law enforcement entities where a member of a minority complains about a local government declining to provide assistance. This is most prevalent in cases relating to welfare and to housing.
As a result of the work of the past years many, especially among the Roma population, regard the minorities commissioner as someone who can settle any administrative business which they did not succeed in, especially at local governments. Of course this is not the case, but the tendency is indicative of increased confidence. This is one of the reasons for the increase of the number of cases in the social-welfare field, and also for the fact that in some of the complaints were are not expected to take action, only to give assistance or advice what to do and where to go to be able to successfully close their business.
Underlying this phenomenon there is the regrettable experience that there is insufficient trust between local governments and the population and that local governments and mayor’s offices do not fulfil the role that they should pursuant to legislation. Sometimes they do not behave like responsible owners of the settlement and, claiming a lack of funds, reject applications that later, as a result of our intervention, they accept. Unfortunately our clients have very limited ability to assert their interests, and they are in general distrustful of officialdom and officials.
In our experience, many mayor’s offices do not even satisfy their legal obligation of putting into writing a verbal request. As a result, the client is barred from legal remedy, and their constitutional right to social security and legal security is infringed.
Based on that assumption, we have received requests, for instance, to give financial aid because the local government does not provide enough; to create jobs because there were none in their settlement; to arrange for rented housing to those in need; to procure grants for the renovation of property or land for housing construction, etc.
The most obvious example to illustrate this category of cases is in the increasing number of applications for subsidised housing and complaints relating to means testing. Their common features: these applications generally cannot be granted because local governments (especially in the country) do not have sufficient housing stock, and what they have is granted as service flats to persons necessary for the work of various institutions (doctor, teacher, town clerk etc.).
They can help our complainants generally by giving them land for construction, but even this is a remote possibility because the conversion of land tends to require substantial financial outlays from the local government, and also this is useful only for those who can afford to start construction. The only help for Roma families with a large number of children, living from hand to mouth below the poverty line, would be the eventual commencement of a comprehensive rental housing construction programme subsidised from the central budget.
The insufficiency of social grants and the absence of adequate housing generate tensions in many a settlement, but this could be eased by proper communication, the treatment of those concerned as partners despite the limited manoeuvring room of local governments and the absence of funds. Therefore we try to obtain detailed information from the local government in every case, to learn about possible solutions and to share the information thus obtained with the complainant, hoping that in possession of that knowledge certain facts and circumstances can be assesses more favourably, and certain problems can be explained which would otherwise appear incomprehensible.
In one case, the complainant, in response to his verbally stated claims, received different answers depending on the clerk he happened to talk to. The problem was serious: he lived in a semi-detached house, and the neighbour was residing abroad, his address being unknown. The semi-detached house was damaged, and our client was unable to have the common wall repaired alone. Meanwhile, the roof also caved in, the building became dangerous, which fact the local government sometimes conceded, and other times did not.
Over the telephone we did not manage to get the authority to take the necessary measures to locate the person with unknown residence and to urgently provide for the aversion of the danger. When we reminded the town clerk in a letter that the construction authority had obligations to maintain the structures located in the settlement pursuant to Act LXXVIII of 1997 on the Formation and Protection of the Constructed Environment, action was taken at long last. It turned out that the owner of the semi had a representative in Hungary, whose person had been known to the office all the while. Through the representative, the owner was obliged to avert the danger and to renovate the property. In that light it is almost impossible to comprehend the conduct of the mayor’s office, the indifference with which the local government refused to deal with the problem of the inhabitants of their settlement.
Another complainant was also rejected who, to solve his housing problem, requested the mayor’s office to “buy him a house where he could rear his four children in circumstances fit for human beings”.
The mayor informed us in response to our enquiry that the local government had no subsidised rental housing stock, and cannot support the housing of the complainant in any other manner either despite his unquestionable eligibility.
After we personally talked to the mayor and the complainant, a surprising thing happened: it became possible, within two months, to buy a plot of land for the nominal price of HUF 100 where public utilities were also installed (with the exception of the sewage canal). It also turned out that our complainant was hard of hearing, he was difficult to communicate with, and requested a house to be purchased only because he did not dare embark on building a house on his own. At our request, the mayor promised further help: to help find a construction contractor, to strike a bargain, to arrange for a bank loan and obtain construction permit, and to provide machinery for the earthwork. The complainant was satisfied; at last he felt that because of his Roma origins he did not have to dispense with things that non-Roma were entitled to. This would not have needed the intervention of the parliamentary commissioner, the complaint could have been settled without our good offices.
In our experience, the on-site enquiry of our staff invariably reveals problems other than those originally presented by the complainant.
This happened in case of the client who complained that he had suffered water damage, and even though he was given a house in exchange for the one demolished due to that damage, in his opinion this was in a much worse state of repair than the ones given to his non-Roma peers.
We found on site that the complaint in this form was only partially justified (others also received houses of comparable size and quality), but we also established that the local government had committed several omissions while proceeding in the case, and had not honoured its commitment to renovate the building.
In our experience, in small settlements people often do not regard local governments and mayor’s offices as institutions to make life easier and provide help; instead, they feel that the officials, and especially the mayor, “lord it over” them, and as they are unable to change this situation on their own, they appeal for external help to attend to their business.
In a village in the Trans-Tibiscan region, a considerable part of the Roma population of the settlement complained about the peculiar system of granting welfare aid devised by the mayor. In vain did they as the system to be changed, the mayor was convinced that he was right and would not budge.
During our enquiries we discovered the position of the leader of the community, because in his opinion he is responsible for the livelihood of people in the settlement, especially the Roma. He wanted to assure this by “apportioning” their regular social aid instead of them. In summer months they only received half the money (because income can be supplemented from odd jobs in that season), while the other half was paid in December (when no odd jobs are available). Furthermore, he introduced a peculiar payment discipline: if someone needed financial assistance, he could get an advance on the regular benefits (instead of obtaining temporary aid, for instance), but at the end of the month accounts were not settled in writing, therefore may felt short-changed.
The mayor considered this practice sustainable in the interest of the Roma population. Still, when we initiated the elimination of the irregular practice and the payment of withheld sums, he obliged.
The case of complainants housed, in a town in Fejér County, in a building formerly used as a workers’ hostel and how as a “temporary shelter” and maintained by the local government is a typical example of bureaucratic administration. One family of Roma origin, with small children, who had been evicted from their former rented housing due to the accumulated rent arrears, turned to the minorities ombudsman for help because of their hopeless housing situation. They thought that it was because of their Gipsy origin that the local government gave them no support in resolving their housing problems. They found it injurious that at the temporary shelter, the local government set a fee for using the facility at a high level compared to the inhuman conditions and their income alike, and they are unable to pay this, together with the accumulated arrears, while also assuring the daily livelihood and necessities of their family.
It became clear during the on-site enquiry that the asset manager, acting upon the authorisation of the local government, had started judicial proceedings to collect the arrears. Pursuant to Section 29 (2) e) of the Ombudsman Act, the parliamentary commissioner may not enquire into the court proceedings, but the ombudsman’s procedure does extend to examining whether the constitutional rights of the complainants may have been violated by the measures of the local government, the causes of the existing situation, and the reasons leading to the accumulation of such rent arrears that led to the commencement of enforcement proceedings by the asset manager at the initiative of the local government.
The escalation of the case, which is the housing problem of an impoverished group, unresolved for years, was attributable primarily to the bureaucratic, insensitive attitude of the local government which paid no heed to the personal circumstances of the families, and also to the inability of the tenants, who lived on the periphery, to assert their interests. Having in mind its ownership interests, the local government legitimately took action to evict tenants with rent arrears from local government housing, but it “forgot” about its obligation to provide social care.
The asset manager entity, which implemented the decision of the local government, apparently proceeded identically (complying with the requirement of “equal treatment”) when commencing judicial proceedings against all the families living there who had accumulated arrears. However, families belonging to the Roma minority still suffered a disadvantage, because while the local government tried to arrange for the placement on non-Roma families after the enforcement action, such local government measures were absent in case of the Roma families with children. The ethnic origin of the complainant and the socially insensitive attitude of the local government may both have played a part in this.
In summary: in the context of the position of Roma families with small children living in the hostel, the procedure of the local government was seemingly ethnically neutral as the persons evicted because of the non-payment of rent were moved to the hostel irrespective of their origin or affiliation. However, in terms of the ratio of the number of persons in the families living here, members of the Roma families were put in a worse-than-average situation, which satisfies the definition of “indirect discrimination”.
Furthermore, it was also established that the local government used the hostel to discharge its social duties, but it did not include it among its social institutions, and did not set the charge for its use on a social basis either.
The tasks of the local government in the field of social benefits are set out in an Act of Parliament. However, the local representative body “provided for” the families living in its area of competence on the periphery of society on a commercial basis rather than in the framework of its social institutions, which fact raises the suspicion of a constitutional anomaly: therefore we initiated at the local government, in addition to the review of the status of the hostel, that the commercial character of the charge for the use of the hostel be eliminated.
Having regard for our initiative, the family assistance and child protection service devised an alternative, recommending that the per capita income within the family should be the basis for setting the differentiated fee, but the local government did not accept that arrangement. The level of the rent is expected to be lowered somewhat as the local government provided for the reduction of the fees for cleaning and the security service, but that reduction would not be implemented because of the social considerations we emphasised, and it would not reach the necessary level, and is not a function of the capacity of tenants to pay.
(From January 2004, the local government proposes, in the manner regulated in its bylaw, to provide a debt management service to eligible persons as a preventative measure against the loss of housing. In the future they will try, by setting up and maintaining this service, to prevent tenants losing their home because of the accumulated arrears.)
In response to our initiative that a comprehensive action plan should be elaborated to put an end to the social marginalisation of disadvantaged families and to arrange for their housing in the long term, the local government reviewed is housing policy and, as it had contained no action plan for the provision of housing to families living in the hostel or elsewhere but in a similar position, it arranged for the supplementation of its housing support system.
In another case, the problem of the complainants dates back to 2001; the local government instructed them to leave their homes because they were illegitimate dwellers (squatters) according to legal regulations. The complainants felt that the quality and nature of the official procedure was related to their Roma origins, therefore we commenced an enquiry into the case. In the course of this, we found no discrimination, but we assisted them with legal advice.
The complainants explained that two years before they had concluded a rental agreement for a two-room flat, with modern conveniences, with a resident. In the agreement the parties agreed that the amount to be spent by the complainants on the improvement of the flat, which was in extremely poor repair, would be deducted from the rent payable by the complainant. Relying on the legality of the rental agreement, they had spend over 1.3 million Forints on the renovation of the flat between 1999 and 2001, effectively making it fit for human habitation, and they also certified payment of the utility bills. When the local government called on them to evacuate the property, it turned out that the other contracting party had no legal capacity to let the flat, therefore their residence there was illegal.
The family has five children, one of which was born with the stroke, therefore the family assistance service offered a crisis home for them for 9 months, but in the long term this was far from an acceptable solution for the family. They would have been unable to resolve their housing problem on their own, also in view of the fact that they had spent all their savings on the renovation of their presumed home.
In view of the above we highlighted to the local government that in this case it acted not only in the capacity as owner but also as the entity responsible for local child protection, therefore, after the eviction, they probably would have been obliged to provide extended financial and in-kind benefits to the family to protect the children.
Between 1999 and 2001, the family concerned spent over 1.3 million Forints on the flat, and they also paid the utility bills, together with the arrears accumulated by the previous tenant, therefore these sums qualify as necessary outlays due to the dilapidated state of the flat, thus, pursuant to the Civil Code, they can claim those sums back from the local government even as possessors without title, under the rules of unjust enrichment.
Following our letter, the representative body decided that the 7-member family could purchase a flat in the jurisdiction of the local government at market price, outside the auction procedure. The outlays on the flat by the tenant, as certified by invoices, must be deducted from the purchase price. Thus the representative body acknowledged that these were necessary outlays and that the local government must reimburse them. Simultaneously, for reasons of equity, they also offered a home purchase allowance to the family that was eligible for child protection and social reasons.
After the positive response we received, it transpired that the measures promised by the local government practically failed to occur. Therefore the complaint was submitted to us again in 2002 (which we could close only in 2003 due to the local government elections).
The implementation of the above local government decision and the “review” of the invoices were the responsibilities of the asset manager. Of the invoices submitted, no more than 1050000 Forints could be accepted realistically. The asset manager offered the family a 37 m2 flat, which had a market value of 3555000 according to an expert opinion, but the family had no cash at all.
At this point the mayor found that the complainants were not ready to make compromise, envisaged a solution where the local government would pay the amount of the outlays accepted by the asset manager to the person selling the flat on the market, as usual when local housing support is granted.
At this junction we had to state that the local government violated the law if it was unwilling to reimburse its debt, including interest, that it had itself acknowledged, and would only pay that sum to the seller of a flat to be purchased by the complainant, referring to the established practice. The frustration of a purchase of a flat (owned by the local government) offered in the framework of the equitable proceeding of the local government may have the result that the complainant cannot get his legitimate and acknowledge claim.
The local government accepted our view, and adopted a resolution to repay the costs approved by the experts.
2. Enforcement of children’s rights in the practice of local governments
Children’s rights are fundamental, constitutional human rights. Children are entitled to special legal protection. Section 67 (1) of the Constitution declares that “all children have the right to receive the protection and care of their family, and of the State and society, which is necessary for their satisfactory physical, mental and moral development”.
In addition to the constitution, children’s rights are protected by Act XXXI of 1997 on the Protection of Children and on Public Guardianship Administration (hereinafter: Child Protection Act).
The Child Protection Act replaced the old, hierarchical institutional structure with a horizontal care provision system, in which it vested the local governments with considerable child protection responsibilities. Child welfare services are outstanding local actors in the enforcement of children’s rights, their implementation and awareness raising. Section 14 (1) of Decree 15/1998. (IV. 30.) NM on the Professional Tasks of Child Welfare and Child Protection Institutions and Persons Providing Personal Care and on the Conditions of their Operation provides that “the local government shall provide, through the child welfare service, for the prevention of the endangering of children living in the settlement”. Local governments mostly complied with that legal obligations and set up those services, but in our experience those institutions do not operate on the basis of real needs, with the requisite staff and quality.
The parliamentary commissioner for the rights of national and ethnic minorities never examines the enforcement of children’s rights on their own, but in a complex manner, in the context of the potential violation of constitutional rights. Children’s rights are always encountered indirectly, relating to housing, social or educational complaints. In these cases most complainants who come to us are not aware of their own rights, they have poor capacity for the assertion of their interests, therefore they are hardly able to protect and represent the rights of their children. We should emphasise that, like in previous years, the complaints we received contained violations of children’s rights almost exclusively relating to financial reasons, deprivation and poverty. Poverty makes it impossibly to meet the needs arising from the fundamental children’s rights. In addition to such needs, child poverty also results in a kind of exclusion, which is especially true for the Roma living under the poverty line.
Problems with the system of the child welfare service to identify and signal danger
One of the most severe, but regrettably common, problems we noticed in the child protection system is that the child welfare service is unable to fulfil its most important duty specified in the Child Protection Act and its implementing regulations, namely to recognise and signal that a child is in danger. The Child Protection Act makes the child welfare service the hub of the system. It is not the institution to solve every problem, but an important information carrier and intermediator between the actors of child protection. The child welfare service has the additional tasks to investigate the causes of danger, if such is discovered, and to make a proposal for their resolution. In the course of our enquiries we have found on several occasions that in response to our question about what the local government does to prevent or terminate the danger threatening the children of the complainant family, we only get a listing of the cash benefits prescribed by legal regulations, or reference to their insufficiency.
A Roma mother of three appealed for the help of the ombudsman for the improvement of their extremely poor living conditions. The young woman lives with her children at her mother’s 30 m2 flat. Her husband (the father of the children) cannot live with them because of the lack of space. The grandmother is sickly and suffers from psychological problems, therefore she puts up with the three small children with great difficulties only. For all this reasons, it is impossible for the children to study at home.
In the course of our enquiry we requested the local government to conduct a survey of the living environment. The survey verified the position of the complainant and, in view of the difficulties of the children in studying because of their housing conditions, the representative body put the family at the top of the list of applications for subsidised housing. It is beyond comprehension why the child welfare service had not notified the local government of the problem of the children earlier.
In our experience the staff of the child welfare service, just as the majority of those working in the welfare area, have very little knowledge of the Roma, the Gypsy culture, which renders it very difficult, if not impossible, to relate to them and to promote the resolution f their problems.
In our opinion, it would be necessary for social workers, similarly to public servants working in health care, public education and other “face-to-face” positions, to master in the course of their basic or postgraduate studies the special skills that are indispensable in addressing the problems of members of the Roma minority.
The problem of the voluntary nature of maintaining contact with the child welfare service
The Child Protection Act and the related decrees consistently distinguish between service provision and regulatory activities, linking voluntariness with the first, and compulsion with the second. In the new system of Hungarian child protection, introduced in 1997, the child welfare services were made responsible for care and service provisions. It clearly follows from the spirit of the Act that the co-operation of parents with the child welfare service must be voluntary, even if it is clearly in the interest of the child. In the absence of voluntariness, the child welfare service would lose its assisting, care provision function. Unfortunately we have encountered practices which completely disregard the spirit and objectives of the law.
The local government of a city in <Fejér County rented out the rooms in its old workers’ hostel to eligible families only if they undertook to mandatorily co-operate with the local child welfare service. If the families violated the strictly prescribed forms of co-operation, the asset manager of the local government immediately terminated their rental agreement. It should be emphasises that the local government did not include the hostel in the social institution system; therefore the rooms in it were rented out at market or quasi-market prices.
In our view, the provision in the agreement on the use of the hostel which requires mandatory co-operation with the child welfare service is incompatible with the Social Act and with the objectives of the Child Protection Act. In our view, it is inappropriate to force families in difficult positions to co-operate by threatening severe sanctions, even if the objective to be attained, namely the protection of children or minors, is legitimate. The persons concerned are at liberty to request the help of the child welfare service, that is, to make use of a voluntary service. (On the other hand, the agreement is also problematic because a rental agreement should regulate exclusively rights and obligations pertaining to the rental relationship concerned.)
Based on the findings of the enquiry, we initiated the amendment of the agreements concluded with the tenants. The representative body accepted the initiative of the ombudsman.
“Confusion of identity” of the child welfare service
The “confusion of identity” of child welfare services is a problem similar to the mandatory co-operation with the service. Occasionally the staff of the services threaten their “clients” with the placement of children in state care, assuming an authoritative attitude, as if they were a regulatory authority. The law obliges the child welfare services and the public guardianship offices to rely on each other, but this cannot mean the confusion of their tasks and especially not their powers. The child welfare service is not an authority. It can only make recommendations concerning the placement of children under protection, their temporary placement, removal to foster-homes etc.
Complainants turning to the minorities ombudsman seeking help in resolving their housing problems unanimously claimed in the interviews that the staff of the child welfare service have threatened to take their children to foster care because of their debt or lifestyle. Therefore some families are reluctant to allow their children even to go to school. In the course of the personal interviews we found that the tenants were unable to tell apart the staff of the service and of the guardianship office, and are not aware of the different roles of the two institutions.
Based on the findings of our enquiry, we reminded the competent local government and the child welfare service to terminate the infringing practice. To facilitate the resolution of the practical problems of liasing between the child welfare service and the families in need, we recommended that the services of the National Family and Social Policy Institute as a professional supervision and methodological institution are used in the form of training sessions. Unfortunately, the representative body rejected our proposal, claiming that the staff of the child welfare service already had high qualifications.
Local governments as key actors in the child protection system
As we noted in the introduction, the Child Protection Act placed the local governments in a new position, entrusting them with key preventative and new care provision functions.
However, our experience indicates that local governments are sometimes unable to discharge these functions, for various reasons. We must not disregard instances where the child welfare service recognises the danger threatening a child, makes a proposal for its elimination, but the local government fails to take action.
In Dunaújváros, the local child welfare service had submitted, in ach year, a detailed report to the representative body about the living conditions of the complainants living in a hostel, their prospects, or rather the lack hereof, their debt accumulated in the previous years, their causes, recommendations for their resolution and the use of preventative measures. Despite the warning given by the service, the local government failed to take measures every year.
In order to eliminate the social marginalisation of families in difficult situations and, in particular, to prevent the continued violation of children’s rights, we proposed that a comprehensive action plan is devised.
It is a well known problem that local governments often have no temporary shelters. Hungarian child protection always gives preference to family-centred solutions in every respect, establishing a fully child centred protection system. Being raised in their own families is a fundamental right of children. It is a basic principle of the Child Protection Act that a child cannot be removed from his family because of a risk arising exclusively from financial reasons. In order to enforce this legal principle, the legal regulation imposes a requirement on local governments that if the child and parent have no accommodation, they must be placed together into a temporary home for families. Unfortunately, this legal provision is enforced in the rarest of cases. Our enquiries established that, in the absence of budgetary funds, the local governments of small settlements and villages establish no shelters, which is a mandatory requirement of the Child Protection Act, while in large cities the temporary homes for families are almost always full.
A special problem relating to the regular child protection benefit
In accordance with the established practice of modern states, the state must also assume responsibility for the rearing of children: the state, and the local government, has particular tasks in supporting children, being obliged to provide cash benefits.
In a city, our enquiry reviewed the local government practice of providing assistance to the complainants. The local government provided the families with extraordinary child protection benefits and, as regular child protection benefit (under the heading of supplementary family allowance at the time of our enquiry), paid for the school or kindergarten meals of the children.
We established that the resolution on the extension of meal contributions within the framework of the regular child protection benefit was illegal, and the resulting arrangement constituted a severe infringement of the right of the eligible persons to social security. The local government decided the amount to be remitted for meals in respect of a given child for a year in advance, in a monthly breakdown, but it did not specify who in the child institution is the recipient of the sum and when, how, and with whom he must settle accounts. The parent is the beneficiary of the sums concerned, and the institution merely manages the funds. The parents must receive any amounts left over due to days of absence (sickness, cancellation), in exchange for an appropriate receipt. Lacking this, the family does not receive the benefit that the children are automatically entitled to pursuant to the law.
The local government accepted our initiative on this issue in its entirety.
Like in previous years, the complaints relating to social and children’s rights were filed almost exclusively by members of the Roma minority. In case of a disadvantaged social group, with a large proportion of them living on the periphery of society, the protection of children’s rights is of utmost importance. It is a fact that in Hungary today the position of Roma children, the enforcement of their rights is much worse than in the case of the non-Roma. As a fundamental requirement of the social integration of the Gypsies, the children living in Roma families must have the same rights and opportunities, not only in words but also in practice, as their peers in the majority society.
3. Complaints relating to penal institutions and the police
Complaints against penal institutions
Inmates of penal institutions have a special legal status, because an imprisonment legal relationship is created, which gives rise to rights and obligations for the detainees. The state may limit and regulate human freedoms only to such extent as required by the public good, i.e., the unity of society, but this is also its obligation. Citizen’s rights may be limited for the purpose of imprisonment only to the extent that this is allowed by legal provisions and that it is unavoidable. During the term of imprisonment the rights and obligations due to every citizen and the special rights and obligations arising from imprisonment exist side by side. The latter have the special feature of prevailing only during the term of imprisonment.
Section 2 (3) of the Penal Institutions Code (PI Code), in line with Section 66 (1) and Section 70/A (1) of the Constitution, provides that detainees may not be subjected to discrimination based on their national or ethnic identity, religious or political conviction, social background, sex or financial position.
This year the ombudsman received 23 complaints relating to penal institutions, showing a slight increase. The increase in the number of complaints is attributable to the general substandard state and overcrowding of Hungarian penal institutions. The vast majority of such institutions are ill-equipped, and conditions are slow to change. All these factors could contribute to the frequent occurrence of conflicts and tensions among the inmates, and between the inmates and the guards.
The complaints can be classified into two categories:
· in some cases the detainees require information (about the suspension of punishment, the application and other possibilities after release, child custody, completion of studies, housing, taxation, expected date of release);
· in other cases inmates appeal to the parliamentary commissioner for assistance in redressing their grievances (refusal to be placed into pre-release group, harassment by the staff of the penal institution, rejection of request for transfer, rejection of application for the suspension of punishment, discrimination in a penal institution, rejection of release on probation, inadequate possibility of maintaining contact with the family).
The enquiries generally revealed that the grievances described in the complaint were unfounded and that the penal institution acted lawfully, but there were some cases where the grievance suffered by the inmate was redressed as a result of the intermediation of the parliamentary commissioner.
Complaints against police procedure
There has been a slight decline in the number of complaints about the work of the police since the previous years. The subject matters of the complaints were generally similar; therefore it would be unnecessary to present them on a case-by-case basis in this report, while we should like to use some typical cases to highlight the characteristics of this category of complaints.
Even though the complainants objected to the work of investigating authorities, in most cases their grievance was the issue of the warrant for pre-trial detention.[30]
Other complainants objected to the investigative procedure, the arrest by the police, the conduct of policemen, the illegal management of data by the police and the imposition of a fine for misdemeanour.
In some cases our enquiry led us to the conclusion that the authority acted in contravention of the law, and the complainant had suffered a grievance. Here is a typical example:
A complainant in pre-trial detention complained that the police inspectors used inadmissible methods against him, subjected him to violent interrogation, assault and degrading treatment. The mother of the complainant also found it injurious that the police conducted a house search in their home on several occasions. She claimed that they had requested the court to release her son on parole, but she was rejected every time. According to the complainant and his mother, their grievances were related to their minority origins.
The parliamentary commissioner, pursuant to the obligation set fort in Section 24 of the Ombudsman Act, initiated criminal proceedings to be commenced by the county chief prosecutor for the suspicion of coercing confession and other crimes. The chief prosecutor informed us that during the preliminary enquiries the following facts emerged. In respect of the policeman proceeding in the criminal case, no suspicion beyond reasonable doubt could be established.
In his complaint and petitions, the complainant claimed that during his interrogation as accused, the words of the interrogating policemen rather than his words were entered in the record, and he named some of his acquaintances as perpetrators only out of fear.
However, the review of the documents revealed that the contents of his statement made during his interrogation were corroborated by the statements made by the persons he named during their interrogation. According to the public prosecution, as the interrogation as accused occurred two days after the complainant made his statement, it can be reasonably assumed that the report of the interrogation contains the words of the complainant.
The petitioner also complained that before his interrogation the policeman hit him with his fist; still, he did not tell the doctor, at the medical examination, about the assault and no outward signs of injury were recorded in the medical opinion.
Based on the information collected during the preliminary enquiry, the public prosecution did not find it plausible that the interrogating policeman had committed a crime, therefore the investigating authority of the public prosecution declined to commence an investigation, which the chief prosecutor agreed with.
On 12 December 2002 the police repeatedly conducted a search of the home of the complainant, and he was arrested, then the court issued a warrant for pre-trial detention on suspicion of theft and criminal misuse of narcotic drugs. Subsequently the pre-trial detention was extended several times by the court, then the coercive measure was terminated on 28 April 2003 claiming that the reasons for the warrant for detention no longer existed.
In April 2003 we initiated a new enquiry because the mother of the complainant claimed again that in her view the policy conducted the criminal procedure without sufficient evidence and in contravention of the law. She objected to the unnecessary protraction of the investigation. Furthermore, she noted that the procedure against her son can be related to her position in the minority self-government and to her activities, which met with police disapproval. Having learned the positions of the complainant and of the defence lawyer of the accused, and having reviewed the documentation of the procedure, the ombudsman presumed that in the case concerned the requirement laid down in Section 96 (1) of Act I of 1973 on Criminal Procedure (old CP Act) was not met, namely: “Authorities shall strive for pre-trial detention to be of the shortest duration possible. If the accused is held in pre-trial detention, the procedure shall be conducted with urgency”. It follows from the nature of detention that the accused in pre-trial detention can in no way exercise its fundamental constitutional right to personal freedom, freedom of movement and free choice of residence. The pre-trial detention is not punishment brought forward, but a coercive measure meant to assure the success of the procedure (entailing severe restriction of the fundamental rights of the accused), which can be used only in cases and to the extent that this is inevitable. This is promoted by the rule of urgency. If the investigating authority fails to comply with the requirement of urgency, it severely violates the aforementioned constitutional rights of the accused.
This grievance can be established beyond doubt from the documentation of the investigation against the complainant, because the detention lasted a total of 137 days, and during this time the authority conducted substantive investigative acts on 12 days only: the unreasonable delay in the proceedings of the authority resulted in an anomaly.
Based on the above, on 13 May 2003 we addressed a recommendation to the head of the county police headquarters requesting that the identity of the responsible persons be established, and that he examine whether this was a unique occurrence, and if yes, why it happened, or whether the specific case leads to the conclusion that this is a general practice.
The county police commissioner informed us about the following:
· the investigating authority committed no infringement because they assured urgent treatment as far as they could, and no unnecessary delays occurred;
· in the specific case it cannot be disregarded that, in addition to safeguarding the rights of the accused, Section 5 (1) of the CP Act imposes on the authorities the obligation to “clarify, and establish the reality of, the facts of the case thoroughly and completely in each stage of the procedure, taking into consideration the evidence for and against, and circumstances aggravating and attenuating criminal liability”;
· in the course of the enquiry a number of other cases were also reviewed which were conducted with the accused in pre-trial detention, and it was established that the extension of pre-trial detention by unnecessary delays never arose as a suspicion, but the procurement of certain special expert opinions do take a long time, for reasons beyond the control of the investigating authority.
We were also informed that in the case on hand several expert opinions had to be obtained, which were completed only in March 2003. As an additional procedural safeguard, the competent prosecutors always subject investigations with the accused in pre-trial detention to more severe control, therefore it is assured that the rights of persons whose personal freedom is restricted are not violated.
(The country police commissioner did not initiate disciplinary action as a result of the enquiry, but based on our recommendation he emphatically warned the heads of the investigating authorities of the county of the necessity for enhanced and continuous control of the respect of the rights of the accused.)
In another case a journalist complained in his petition that the police, on his website, published infringing data on the watch list, the police headquarters mentioning the presumed Roma origin of the wanted persons.
Provisions relevant for the specific case – the management of personal data of wanted persons – are found in Act XXXIV of 1994 on the Police and in At XVIII of 2001 on Arrest and Seizure Warrants.
Pursuant to legal regulations, watch lists may contain the following personal data:
a) the natural identifying data of the wanted person [forename(s) and surname], in case of women maiden forename(s) and surname, sex, birth place and date, maiden forename(s) and surname of mother, citizenship, place of residence and abode, alias, nickname, personal description, special features, photo, description of clothing and objects in his possession, presumed place of discovery, date of abode becoming unknown,
b) reason for issuing a warrant of arrest,
c) date, hour and minute of issuing the warrant of arrest,
d) file number of the procedure resulting in the warrant of arrest,
e) authority issuing the warrant of arrest,
f) other particulars necessary for discovery, as specified in legal regulations, furthermore
g) if, in the interest of the criminal procedure, the authority issuing the warrant prohibits the supply of data or disclosure.
During the enquiry into the specific case we also had to take into consideration the provisions of Section 7 (1) of the ARNEM that “admitting and acknowledging affiliation to a national or ethnic group or minority is the exclusive and inalienable right of the individual; no one can be obliged to make a statement concerning his affiliation to a minority group”, as well as the interpretative provision in Section 2 (2) of the Data Protection Act. Pursuant to the latter code section, the data relating to national and ethnic affiliation constitute personal data, and section 3 (4) of the same Act states that “an Act of Parliament may order the disclosure of personal data, simultaneously explicitly specifying the range of such data; in every other case disclosure requires the consent, and in case of special data, the written consent, of the person concerned...”
In the particular case, we initiated a police enquiry, as a result of which the representative of the investigating authority informed us as follows:
· the aforementioned watch list items have been removed from the website of the police;
· they promised that in the future the watch lists proposed to be put on the website by the county police headquarters will be specifically monitored, and every police unit concerned will be warned that the wanted lists can contain exclusively those personal data listed in the above legal regulations.
Pursuant to the Data Protection Act, and also on the basis of our practice jointly devised by the data protection commissioner, ethnic affiliation is a sensitive data the disclosure of which requires the written consent of the person concerned (data owner), therefore the absence of such – even if in a police warrant – violates the right of the individual to the protection of personal data and also his right of free admission and acknowledgement of identity.
In another case, for instance, the president of a Gipsy minority self-government complained that in a catering unit operating in the settlement, three police inspectors threatened and assaulted a Roma man. Because of the grievances, a friend of the assaulted man filed a report at the military prosecutor’s office. The proceeding military prosecutor informed the petitioner that the act of the police constitutes the offence of mistreatment in official proceedings, and the county public prosecution investigating office is competent to investigate such cases. According to the complainant, the assault was related to the Gipsy entity of the aggrieved person.
Section 174/B of the Penal Code provides that if someone “assaults another person because of his actual or presumed affiliation to some national, ethnic, racial or religious group, or forces, by physical force or threat, such person to do, not to do, or tolerate something, he commits a crime”.
Therefore the complaint in its substance raised the suspicion of this very serious crime, therefore in accordance with our obligation set forth in Section 24 of the Ombudsman Act, we were forced to initiate the establishment of criminal liability even though a criminal procedure was already ongoing due to a less grave act.
The enquiry revealed that the act was very complicated to judge. In view of the fact that the policemen suspected of the assault were not on duty at the time of the act, and their conduct was not official in nature, the procedures started because of the crime set forth in Section 174/B of the Penal Code and the offence of mistreatment in official proceedings both had to be terminated: liability could be established only for assault, which is to be prosecuted upon the private motion of the aggrieved party.
4. Are estate debts and liabilities a burden only for the poor? An old problem in new guise
In our reports to Parliament we generally not only describe the most significant cases in the reporting period but also put forth general recommendations relating to the complaints. In 2002 we requested Parliament to repeal the provision which allowed local governments to recover, as estate debts, from the heirs amounts remitted to persons receiving old person’s annuity or regular social aid, after their death. Thus, pursuant to that authorisation, the local government effectively extended a “loan” rather than aid to the needy. However, unlike a loan agreement, this legal relationship is created by an administrative resolution rather than the agreement of the parties. Because of their vulnerability, persons applying for aid are in no position to decide freely whether to accept that condition, which imposes severe burdens on their heirs. The regulation was especially unfair to under-age children of aid beneficiaries, because local governments could enforce their claims from their inheritance, too. The estate debt could also be recovered from the assets of the spouse encumbered with right of enjoyment.
Our legislative proposal was met with favourable reception. Upon the proposal of the Government, Parliament repealed Section 32/A of the Social Act in Act IV of 2003. As a result of the amendment, as of 15 February 2003 the legal basis for the local governments to register at the notary public the amount of the aid or annuity as estate debt ceased to exist.
Unfortunately, the Government failed to send to us the draft legislation, therefore we found out only after the adoption of the Act that the proposer did not care to settle the legal problem of already registered estate debts. Thus, even though the Social Act no longer authorises local governments to reclaim the amount of aid paid, they can continue to do so based on grants of probate issued earlier, within the five year statute of limitation specified in the Civil Code. During that time, the heir has unlimited rights of disposal, and may even sell the assets. However, if at the time of enforcing the claim he no longer has the inherited assets in his possession, he is liable for the payment of the debt with all his property, up to the amount of the inheritance.
In our experience, some of the local governments did not collect their claims after the issue of the grant of probate. This procedure may appear to be fair, but in reality it seriously infringes on the interest of the heirs. Local government in general tend not to waive their claim but they continue to carry it on their books. Thus heirs must live with the knowledge that they have debts of hundreds of thousands, or even millions, of Forints, which can be enforced at any time within the period of limitation. Their position is made worse by the fact that if the local government turns to court to enforce its claim for estate debt, it may be awarded interest from the date of death of the testator. Even though the Social Act allows interest to be charged only in cases of the recovery of benefits claimed illegitimately or in bad faith, judicial practice tends to rely on the rules of the Civil Code rather than on the aforesaid provision. And the Civil Code, with the exception of contraction relations between private persons, generally provides for the payment of interest in cases of cash claims. Thus local governments still have claims, the size of which is unknown, its sum, at least in theory, increasing continuously in line with the interest rate specified in the annual budget acts. This anomalous situation is illustrated by the following case:
The complainant, after the death of his mother, inherited the parental home together with his siblings. He wanted to renovate the property, but was unable to finance the work on his own. This was all the more difficult for him as the local government registered estate debt of 1 013 895 Forints on the inheritance, in return for the regular social aid and old person’s annuity paid to his mother. The complainant wanted to stay in the settlement together with his family, but because of the debt to the local government and bad state of repair of the house, he was forced to sell his share of the inherited property. He signed the sale and purchase agreement under the impression that the buyer also undertook to pay the estate debt. In reality, the local government claim does not devolve upon the buyer, unless there is agreement to the contrary. After the sale of his property, the complainant received no information from the local government concerning the legal status of the estate debt; therefore he was under the impression that the buyer had settled it. In the course of the enquiry he heard from us about the resolution of the representative body not to enforce the claim. Interestingly enough, this decision was adopted after the Roma family had sold the property and moved away from the settlement. If the local government had informed them in due time that it intended to forgive the estate debt, the complainant would obviously not have concluded the sale and purchase agreement, which was detrimental to him.
The minorities commissioner did not have adequate authority to provide full remedy for this complaint. We could not take a position whether the complainant suffered any damage in relation to the sale and purchase agreement signed with the private person. The declaration of the nullity of a purchase agreement can be requested from the court. In our view, the complainant may successfully challenge the agreement if it can be proven that he had reason to assume the devolution of the estate debt because of the deceptive conduct of the buyer, or if there is highly unreasonable disproportionality between the property sold and the consideration.
This case highlights the risk that by letting the enforcement of the estate debt “hover”, local governments may induce families they consider “persona non grata” to leave the settlement. Staying within the bounds of legality, local governments can even enforce their claim by auctioning off the property, because families eligible for social aid do not have enough cash or seizeable property to settle their debt. Due to the insufficient preparation of legislation there is the risk that in the coming years certain families may lose their only major asset, the inherited real property.
In our view, urgent government action is called for in this case. First it would be necessary to conduct a survey to establish which settlements have such estate debt recorded, how many families are affected by the problem and what is the amount of the claims.[31] Further measures could be determined in light of those data. Pursuant to Section 108 (2) of the Public Finance Act, local governments may waive their claims in the manner and instances defined in local bylaws. This solution would be expedient because local governments are also aware that a significant portion of estate debts cannot be collected, or can be collected only by causing substantial and inequitable injury.
By last year’s amendment, Parliament expressed that it considered it necessary to remedy this anomaly resulting from the deficiencies of legal regulation. Upon our proposal, the Social Committee of Parliament discussed this issue as a separate agenda item. We are confident that in the future we can continue to rely on that support to resolve problems relating to the estate debt.
[30] As the issue of a warrant for pre-trial detention is in the competence of the court, the ombudsman has no power to investigate those complaints.
[31] These data could be collected easily, as local governments have up-to-date records of their claims.
Chapter VI
I. Breakdown of documents generated in year 2003, by submitter
|
Individual submissions |
322 |
|
Minority self-governments |
77 |
|
Civil organisations |
22 |
|
Central state organs |
167 |
|
Municipal governments |
18 |
|
Educational institutions |
10 |
|
Ex-officio investigations |
38 |
|
Other |
20 |
|
Total |
674 |
II. Proceedings launched based on documents generated in year 2003
|
Start of investigation based on submission |
425 |
|
Ex officio investigation |
27 |
|
Information |
10 |
|
Position statement |
39 |
|
Opinion about legal document |
142 |
|
Other |
31 |
|
Total |
674 |
III. Minorities involved in the cases
|
Roma |
372 |
|
Bulgarian |
2 |
|
Greek |
5 |
|
Croatian |
8 |
|
Polish |
1 |
|
German |
30 |
|
Armenian |
7 |
|
Romanian |
11 |
|
Ruthene |
6 |
|
Serbian |
4 |
|
Slovak |
18 |
|
Slovene |
0 |
|
Ukrainian |
0 |
|
Complainant not falling under the scope of the Nektv. |
200 |
|
Case involving several or all minorities |
28 |
|
Total |
692 |
IV. Regional distribution
|
Baranya |
13 |
|
Bács-Kiskun |
25 |
|
Békés |
20 |
|
Borsod-Abaúj-Zemplén |
41 |
|
Csongrád |
18 |
|
Fejér |
17 |
|
Gyor-Moson-Sopron |
7 |
|
Heves |
22 |
|
Hajdú-Bihar |
20 |
|
Komárom-Esztergom |
14 |
|
Nógrád |
16 |
|
Pest |
47 |
|
Somogy |
10 |
|
Szabolcs-Szatmár-Bereg |
37 |
|
Jász-Nagykun-Szolnok |
24 |
|
Tolna |
12 |
|
Vas |
2 |
|
Veszprém |
18 |
|
Zala |
5 |
|
Budapest |
301 |
|
Complaints not relating to any specific region |
5 |
|
Total |
674 |
V. Organs affected by the cases filed
|
Court of justice |
46 |
|
Law enforcement institution |
19 |
|
Institution of health care |
3 |
|
Enterprise |
11 |
|
Organ of family and child-care |
12 |
|
Minority self-government |
17 |
|
The media |
8 |
|
Minsitry, organ with national competence |
11 |
|
Educational institution |
24 |
|
Bank |
5 |
|
Police organ |
31 |
|
The social security self-government and pension office |
4 |
|
Local government |
131 |
|
Attorney's office |
9 |
|
National Elections Commission |
6 |
|
Other* |
337 |
|
Total** |
674 |
* information materials sent to our office belong to this group along with complaints against private individuals and cases remitted to the competent commissioners
** In one case there can be more than one organ affected
VI. Total number of recommendations and initiations
|
Initiations |
74 |
|
Recommendations |
15 |
|
Legislative proposal |
17 |
|
Petition to the Constitutional Court |
4 |
|
Initiations accepted |
28 |
|
Recommendations accepted |
11 |
|
Legislative proposal accepted |
7 |
VII. Organs affected by the recommendations, initiations, legislative proposal
|
Tax and Financial Control Administration |
2 |
|
State Audit Office |
1 |
|
Ministry of Interior |
5 |
|
Institution of health care |
3 |
|
Ministry of Health, Social and Family Affairs |
3 |
|
Communication Office |
1 |
|
The media |
4 |
|
Ministry of the Prime Minister |
2 |
|
Institution of education |
5 |
|
Ministry of Education |
3 |
|
Office of the Parliament |
1 |
|
Police |
10 |
|
Local government |
45 |
|
Total |
85 |
VIII. Measures taken after investigations*
|
Information |
154 |
|
Official position |
60 |
|
Mediation |
1 |
|
Remittal |
63 |
|
Refused without investigation (outside scope of competence) |
36 |
|
Dismissed after investigation |
20 |
|
Call for investigation by other organ |
7 |
|
Impeachment |
3 |
|
Recommendation, initiation, legislative proposal |
106 |
|
Other |
152 |
|
Pending |
97 |
|
Total |
699 |
* In one case more than one measure could been taken.
