ANNUAL REPORT

As regards the figures for complaints received in the past year, no striking changes can be noted. Following the trend of recent years, the number of complaints rose again, but neither in terms of the total number nor spread of complaints does this give cause to draw far-reaching conclusions. At the most similar observations can be made in this respect to those found in last year’s annual report.

Regarding European tendencies, in the past year too several events occurred on the European stage of importance for the topic in hand. The most important European organisation in terms of human and minority rights is the Council of Europe, which in 2000, as we reported at the time, accepted supplementary protocol no. 12 to Article 14 of the European Convention on Human Rights. The protocol extended the validity of Article 14 (declaring the prohibition of discrimination), previously only valid for the Convention, to the full legal systems of the member states. The protocol enters into force if ratified by at least ten member states. As is widely known, Hungary was one of almost thirty countries to sign the protocol immediately, but has yet to ratify it. In the meantime, however, there arose ten less ”cautious” member states to ratify the protocol. As a result, it will come into force from April of this year, and the various ”monitoring bodies” of the Council of Europe will be able to call its implementation to account.

Alongside this, the process of rendering the constitutional principle of equal treatment from the realm of elevated principles into day-to-day legal practice continued in the whole of Europe in 2004. Together with the Council of Europe, the EU also played a leading role by ensuring further steps took place for the relevant EU directives to be enforced. In connection with this a serious debate arose in both European organisations on the treatment of ethnic data. For if we take seriously the directives and the definitions of discrimination, in particular the concept of indirect discrimination, also institutionalised in the code of laws of the member states as a consequence of these directives, then it is clear to see that without resolving the question of how ethnic data should be handled it is barely possible for anti-discrimination legal institutions to come into effect. Currently, however, the legal assessment of ethnic data differs widely within the countries of the EU. Whilst in Great Britain or in Holland, for example, no legal constraint rears up restricting the handling of ethnic data by the state (quite to the contrary), in the majority of countries, including Hungary, the law is restrictive or not transparent.

Here in Hungary, independently of this, or rather parallel to this, a debate got underway as to how such data should be treated in the context of minority self-government elections, though essentially the problem in Hungary is similar to elsewhere.

Our hope is that in the near future an universally acceptable solution may be drawn up to this undoubtedly sensitive and complicated issue as a result partly of the work of the working group set up on this matter in the EU administration, and partly of the similar expert committee established in the Council of Europe’s Commission against Racism and Intolerance (ECRI).

The most recent recommendation (no.9) of the ECRI, published last year in August, gives an account of action to be taken in the fight against anti-Semitism. Due to the debate which arose concerning this topic here in Hungary, it is worth mentioning that the recommendation (in line with recommendation no.7) devotes particular consideration to the instruments of criminal law.

In contrast to the all too moderate standpoint on this topic in Hungary, the recommendation urges that states crack down on public expressions of anti-Semitism with the full arsenal of criminal law.

It is worth citing the relevant provisions of the recommendation:

”

– The law provides that, for all criminal offences, racist motivation constitutes an aggravating circumstance, and that such motivation covers anti-Semitic motivation;

– criminal law in the field of combating racism covers anti-Semitism and penalises the following anti-Semitic acts when committed intentionally:

a. public incitement to violence, hatred or discrimination against a person or a grouping of persons on the grounds of their Jewish identity or origin;

b. public insults and defamation of a person or a grouping of persons on the grounds of their actual or presumed Jewish identity or origin;

c. threats against a person or a grouping of persons on the grounds of their actual or presumed Jewish identity or origin;

d. the public expression, with an anti-Semitic aim, of an ideology which depreciates or denigrates a grouping of persons on the grounds of their Jewish identity or origin;

e. the public denial, trivialisation, justification or condoning of the Shoah;

f. the public denial, trivialisation, justification or condoning, with an anti-Semitic aim, of crimes of genocide, crimes against humanity or war crimes committed against persons on the grounds of their Jewish identity or origin;

g. the public dissemination or public distribution, or the production or storage aimed at public dissemination or public distribution, with an anti-Semitic aim, of written, pictorial or other material containing manifestations covered by points a), b), c), d), e), f) above;

h. desecration and profanation, with an anti-Semitic aim, of Jewish property and monuments;

i. the creation or the leadership of a group which promotes anti-Semitism; support for such a group (such as providing financing to the group, providing for other material needs, producing or obtaining documents); participation in its activities with the intention of contributing to the offences covered by points a), b), c), d), e), f), g), h) above;

– criminal legislation should cover anti-Semitic crimes committed via the internet, satellite television and other modern means of information and communication. ”

From the above it can be seen perhaps that 2005 will be a year not of satisfied rest, but rather of advancement – and in accordance with rules laid down by the EU – on the European path.

Chapter I
The minority self-government system

1. An overview of problems arising from legal regulation of the minority self-government system, and attempts made to redress these

In terms of minority rights the most significant event in 2004 was that on March 5^th the Government submitted to the Parliament the T/9126 Bill on the Election of Minority Self-Government Representatives and Mayors and Amendment of Certain Acts concerning National and Ethnic Minorities.

The designated parliamentary committees found that the normative text lent itself to a general debate.[1] It was envisaged that the final voting would have taken place at the latest in the autumn parliamentary session; however dating from March 31^st the Bill has yet to be placed on the agenda. Though the coalition parties and opposition fractions were in agreement on the basic issues of amendment to the minority legislation, they held differing views on the rules for the election of members of minority self-governments, as well as on the question of the establishment of a regional (county) level and the extension of personal scope. In order to secure the necessary two-thirds support for the Bill to be adopted, four party negotiations got underway, in the course of which agreement was approached concerning some of the disputed questions. To assist the legislators in reaching a well-founded decision, we took part in the negotiations, as well as giving our opinion on the normative text.

In this Report we would like to draw attention to the fact that the task of creating this legislation does not bear delay since its postponement would jeopardise the chance of the 2006 minority self-government elections being held.[2] To the best of our knowledge, the general debate on the Bill will be continued from the end of February 2005, thus there is still a chance that new provisions come into force within the time frame necessary to pave the way for the elections. In this parliamentary term there have already been instances of the parliamentary parties rising above their initial differences of opinion and forming the necessary two-thirds voting majority for enactment. Minority communities are calling for precisely such responsible conduct from the Parliament now too. Though the various minority self-governments of a national level hold differing opinions on the Bill, they are of one accord that the reform of minority statutes can not be further delayed.

Within this chapter we shall review the question of whether the submitted normative text is suitable for eliminating the deficiencies of the current regulations as detailed in our earlier reports.

The primary expectation with regard to the new legal provisions is that they must strengthen the public law character of minority self-governments. Currently only certain partial elements of self-governance have been granted, and even these do not always come into full effect in practice. The minority self-government is the only constitutional body with neither a statutory definition nor a precisely determined set of tasks.

The Bill complies with these requirements: it provides a concept of the minority self-government, thus defining its place within the public law institutional system. The most important terms of the definition are that the minority self-government is as an organisation discharging public service tasks laid down by law, operating in the form of a body, and consisting of artificial persons, which is set up in order to ensure the entitlements of the minority community are realised, to protect and represent the rights of minorities, and to organise independently the public affairs of minorities. In contrast to the current regulations, a new element is the reference to ”minority public affairs”,[3] which the Bill therefore interprets in a separate clause. On first reading, an apparently fairly complex definition lays out the boundaries of the tasks to be fulfilled connected to minority rights. Currently the laws do not determine unequivocally which questions affect minority communities. In our experience, certain local governments exploit this lack of legal clarity by failing to involve minority self-governments even when decisions are being made that will have a fundamental effect on the situation of those living in the settlement concerned, claiming that the question is hand is not a minority issue. These interpretative provisions provide for a clear legal position and guard against legal disputes.

One of the essential features of a local government is the exercise of an independent set of tasks and competences. In the case of local minority self-governments, however, these powers are lacking, or are realised only within limited bounds. It is no exaggeration when we claim that in certain settlements decision making autonomy means in practice barely more than establishing rules for the body’s organisation and running. Currently only a slight proportion of minority self-governments maintain some form of educational or cultural institute, yet in their absence we can not speak of independent administrative powers.

The Bill extends, and determines more precisely the set of tasks of minority self-governments. It states that local minority self-governments (according to the new terminology ”municipal” minority self-governments) may have differing competences depending on the needs of the local minority and their ability to meet these needs. Accordingly, the normative text enables the discharge of mandatory and voluntarily undertaken tasks. Among the former tasks are those the minority self-government has taken over from the local government by its own initiative or those delegated to it by another minority self-government. The legislator still does not wish to grant the possibility of minority self-governments taking over the competences of an authority, or competences associated with public utilities. According to the Bill minority self-governments may, within the resources at their disposal, discharge voluntarily undertaken tasks, particularly in spheres concerning minority education and instruction, the local written and electronic press, the fostering of traditions, and cultural affairs. The normative text supplements the provisions concerning educational self-administration of Act LXXVII of 1993 on the Rights of National and Ethnic Minorities (Minorities Act) with rules allowing for the extension of cultural self-administration. It signifies a guarantee that the legislator wishes to define in law detailed rules regarding delegation of competences, compulsory elements of content for the agreement between the self-governments concerned and the means of resolving any disputes that have emerged.[4] Pursuant to the law’s enactment, the local government at the request of the national minority self-government will be legally obliged to hand over the right to maintain institutions which fulfil an exclusively cultural role and meet the cultural needs of the minority concerned. We find it warranted for this regulation to become valid in the case of local minority self-governments too. For in its current form the normative text only provides that – with exceptions found in the law – the local government’s representative body may delegate its set of tasks and competencies to the body of the municipal minority self-government on the latter’s initiative.

Jurisdiction is rendered significantly more difficult by the fact that the Minorities Act currently does not even contain fundamental rules required for the running of minority self-governments, meaning that provisions referring to local governments have to be applied accordingly. The Bill redresses these problems: it stipulates the instances of discontinuance of minority self-governments, key organisational questions – for instance rules for the election of office-holders and establishment of committees – in addition to rules for the convening and chairing of sittings, and the taking of minutes. It additionally settles the legal status of minority self-government representatives by establishing instances of incompatibility and the level of remuneration to be awarded. It also declares that the office of president may be revoked by the judiciary. The legality auditing of the running of minority self-governments is referred to the powers of the competent public administration office according to location of seat. One of the most important changes is that the Bill regulates the financial management of minority self-governments more transparently than under the present circumstances.

These provisions provide the theoretical basis for minority self-governments to fulfil their tasks effectively. We find wanting, however, the fact that the Bill does not provide the necessary legal guarantees for their operation as bodies. According to the Bill’s conception, local governments would remain obliged henceforth to provide minority self-governments with the right to use of premises as well as the discharge of tasks of a technical nature. This regulation portends a scenario where a significant number of minority self-governments are still not going to be able to participate in decision-making processes of local governments as partners of equal status due to their disadvantaged position preventing them from making the most of licences granted in principle. We also take exception to the fact that there is no due sanction in place should the local government not fulfil its obligations. The Bill only allows that the minority self-government may propose that the public administration office commence procedures in such cases. In our opinion, it would offer a solution should the law declare that the judiciary may oblige the local government to ensure the necessary provisions for the minority self-government to function as a body based on a claim brought by the public administration office. For then a possibility would open up to begin executive proceedings against the local government, should it not comply with the ruling of the judiciary. [5]

Though the following problem was touched upon in last year’s annual report, in view of the importance of the question we would like to reiterate that according to the Bill local governments would upon payment supply minority self-governments with premises necessary for them to function as a body. We consider this regulation unacceptable under the current financing circumstances since this would equate to a financial burden which the majority of minority self-governments would be unable to meet from their budgets. This regulation is also objectionable for the reason that it does not provide an answer to the question of whether local governments would merely shift the costs of overheads for maintenance onto minority self-governments, or whether they would also be able to exact rent from them in line with market relations. In our opinion, the latter option would be discriminative considering that numerous social organisations and political parties are able to use local government buildings free of charge, or at least at a preferential price. In the interests of avoiding legal disputes we advise that the Minister of the Interior should – at the most expediently in the Minorities Act or the LXV Act of 1990 on Local Governments (Local Government Act)[6] – be authorised to create a decree regulating the size and equipment of premises that local governments be obliged to supply to minority self-governments in accordance with the size of the settlement or the number of members of the minority community.

In the course of the talks the two questions mentioned below elicited differences of opinion, though it is hoped these can be settled during the debate on the Bill.

The personal scope of the Minorities Act currently extends only to Hungarian citizens, thus those EU citizens living in Hungary, or minorities who have settled here from their native countries are not entitled – at least in principle – to exercise rights accruing to home minorities. (Due to anomalies in the law, however, they have to date had the opportunity to vote in minority self-government elections.) The Bill desires to grant these rights to citizens with an Hungarian place of residence who belong to the relevant minority and are either citizens of the EU, or have settled in Hungary (in possession of an immigration or residence permit) from their country of birth, this country being one from which minorities are legally recognised in Hungarian law. We agree with this concept and to the best of our knowledge the vast majority of the minority communities are also in favour of personal scope being thus extended. For the Parliament would convey the message with this legislation that it regards identical citizenship as just one possible tie between those of minority identity, and acknowledges that it also serves an important cohesive force to belong to a linguistic community or cultural circle spanning country frontiers and branching out from common roots.

In terms of the development of the minority self-government system, one fundamental question is whether a regional level needs to be established.[7] For minorities whose communities speaking the language and fostering the given traditions are located predominantly in the country, county organisations formed by minority self-governments attempt to surmount the lacking regional level. This is, however, just a ”half-measure”, since these associations do not have a legally established set of tasks, and their legal status is the same as that of any other social organisation set up under the right to public meeting. Other minority groups do not hold the selection of regional-level self-governments to be called for since in their view it would be more correct to share the resources required for their operation among local minority self-governments. All parties concerned agree that establishing a regional level would only be justified if the amendment to the statute would vest them with considerable tasks. Such an activity would be that of maintaining minority institutions (schools, museums, other cultural institutions), for instance, whose catchment area extends over several settlements (districts, in the case of the capital). In the interests of reconciling these viewpoints, we recommend that the statute provide for the development of a county level of self-government merely as a possibility and not as an obligation. Individual minority self-governments should be allowed to decide for themselves whether or not the specifics or needs of the area justify the operation of a county self-government.

Regarding the Bill as a whole, we can say that its adoption would represent a significant step forward towards reinforcing the minority self-government system and the accomplishment of cultural autonomy. It furnishes a solution to numerous problems that have long been in existence and have rendered more difficult the day-to-day functioning of minority self-governments. Whilst it is true that the normative text still has flaws, these could be redressed with amendment proposals. We would like hereby to offer our willingness to assist and cooperate with the Parliament in the interests of a law resulting from our mutual work that would be applicable in practice, unambiguous, precise and professionally well-grounded.

2. Failure of reform to the minority voting system and its likely consequences

The abuses observed in the 1998 and 2000 minority self-government elections made it clear that the current statutes are not suited to establishing an institutional system of public law legitimacy. Due to statutory failings, it was possible for minority self-governments to be set up even in those areas without a single inhabitant from the communities claimed to be represented. A large number of ”minority” candidates won a mandate at the elections despite having no attachment whatsoever to the given community: they did not speak the language in question, and were unfamiliar with the culture, traditions and history of the minority.

In the present day these abuses are not only aimed at obtaining the advantages and allowances (in any case fairly minimal) which the mandate carries. The situation is far graver: increasing instances have arisen of voters from the majority community electing their own candidates not from the given minority group, thereby hindering the functioning or establishment of a self-government performing a proper representative function.

In the settlement of Csabaszabadi[8] there has been a tense relationship for years between on the one hand the town mayor and those representatives close to him, and on the other hand the Slovakian minority self-government. The situation became so aggravated that the board dissolved itself and in January 2005 held a local by-election. In the hamlet consisting of a total of 321 eligible voters thirteen put themselves forward as representatives, among them nine as candidates for the Slovakian minority. According to the regulations in force they did not have to make a statement to the effect that they were Slovakians, it was sufficient for them to declare that they would undertake to represent the community. It hereby came about that each of those members who won a mandate as a minority candidate was of Hungarian nationality, in fact among them were even those who had earlier questioned whether or not Slovakians live in the hamlet. Following the elections, the ”Slovakian” representatives announced that they would form a minority self-government by indirect means. Taking advantage of legislative flaws, they essentially did away with the minority self-government, which had consisted of representatives of Slovakian nationality.

Whilst the elections in Csabaszabadi were conducted according to the provisions of the laws in force, we do not consider these provisions constitutional.

Following the 2002 local government elections, political parties and minority communities unanimously spoke up for amendments to election regulations. The Parliament accepted the necessary constitutional amendment in December 2002. On May 1^st 2004 (the day of Hungary’s accession to the European Union) the provision giving every Hungarian citizen of age the right - at least apparently, purely following literal interpretation rules - to take part in minority self-government elections was annulled. As a result of this the only relevant provision presently is that of Article 68 (4) of the Constitution, which declares that ”National and ethnic minorities shall have the right to form local and national bodies for self-government”. It is necessary to bring the legislation into line with the provisions of the Constitution, pursuant to which only members of minority communities can be given the right to vote and run as candidates in minority self-government elections.

In September 2003 we requested the Constitutional Court to declare the current election law provisions unconstitutional.[9] To set out guidelines for the new legislation we also initiated a combined interpretation of the Constitution’s provisions declaring minority rights and those on personal data protection. Regrettably, the Constitutional Court had not yet reached a decision at the time of this report being concluded. It is likely, however, that a decision will be reached prior to the next minority self-government general elections.

We are of the conviction that the elections due to take place in 2006 can not be conducted constitutionally based on the provisions of the current regulations. The only alternative to a reform of election law is to dissolve the minority self-governments. This ”solution” is, however, unanimously rejected by minority communities in Hungary, nor does such a step enjoy backing among the political parties. Our standpoint is that the maintenance and reinforcement of the minority self-government system can be the appropriate institutional guarantee for the exercise of the rights laid out in the Minorities Act. For this, however, we have to create the conditions in law for minority self-governments to function as bodies elected by the community they represent not only in theory but also in practice.

The T/9126 Bill submitted to the Parliament creates the legal conditions for only those with genuine ties to the given community to participate in minority self-government elections. It posits that active and passive voting rights (voting and running as candidate) accrue to citizens of voting eligibility listed in a minority electoral register. In this Report as elsewhere, we would like to stress that this institution should not be regarded as a means for registering minorities. For this is not a matter of a state record of minority voters, but a register drawn up by minority communities on the basis of applications submitted voluntarily by voters. The register, however, only has any import if inclusion in the register is not automatic, i.e. if minorities are authorised to protect themselves from voters wishing to interfere from outside in the voting process. The Bill wishes to meet this expectation by only allowing those persons to be included on the list whom the registry committee (whose purpose is to corroborate the tie of the person in question to the minority group by taking into account certain legally defined criteria) considers to be verified members of the given community. In our opinion fears concerning the minority register are unfounded since its introduction would mean none other than minority communities themselves conducting a procedure in the course of which they establish who is entitled to take part in minority self-government elections. The counter-argument was raised during the talks that registry committees could arbitrarily exclude voters belonging to the ”opposition camp” from the voting process. This concern is not justified since the Bill provides for the possibility of judicial redress of the committee’s verdict.

Due to the danger of abuses, the Bill wishes to draw a halt to the possibility of acquiring a preferential mandate in local government elections. As we mentioned in our previous report, in the current statutory environment this legal institution does not guarantee that candidates of the minority community will in fact get onto the board of representatives even in the instance of the lowest proportion of votes laid down in law. With the introduction of the minority register, however, a fundamentally different situation would come into place since it would become evident which set of voters had established the minority self-government.[10] Should the law provide due guarantee that only members of the given community can run as minority candidates, we do not see reason for repealing the provisions concerning preferential mandates. In 2002, 1296 candidates were elected in total as representatives of local governments. Among them 541 persons, more than 40% of the total stepped onto boards with a preferential mandate. As far as the Roma minority is concerned, approximately 70% of the total local government representative positions were gained in this way. Taking these figures into account, it is rendered likely that the overwhelming majority of minority communities would not be able to represent themselves with voting rights on local governments exercising local public authority without preferential mandates. We thus consider further talks to be called for on this issue.

In expert discussions over recent years we surveyed the question of how to ensure that minorities be able to elect from their own communities the members of the bodies representing them. By now it has become clear that tightening candidature rules and separating the dates of local government elections and minority self-government elections is in itself not enough to guarantee the realisation of this aim. We are convinced that the minority electoral register is the only constitutional means of satisfying these legitimate basic requirements. Whilst we realise that a law requiring a two-thirds majority can only be adopted as a result of a compromise between political parties, our view is that the institution of the minority electoral register is one element of the Bill whose ”sacrifice” can not be allowed to form the basis of the consensus.

3. Deficiencies of the Election Procedures Act

In our previous report, the failings of the C Act of 1997 on Election Procedures (Election Procedures Act) were addressed. We must concern ourselves with this question once again, however, since certain anomalies have not yet been redressed by the legislator and, furthermore, in the past year we have been confronted with new problems calling for a solution.

The current text of the Election Procedures Act is unconstitutional for the reason that provisions are lacking to guarantee that those entitled to legal redress be informed of the decision of the election committee within the deadline allowed for filing a complaint.[11] In March 2003 we put forward a proposal for the necessary amendment to the law in the interests of the right to remedy being realised, i.e. prior to the Constitutional Court establishing unconstitutionality by default.

The Parliament was to have amended the provisions of the Election Procedures Act by February 15^th 2004, yet the Government did not even submit the T/9263 Bill on Amendment to Certain Acts associated with Elections within the time limit set by the Constitutional Court. The submission was only put before the Parliament in March. The Bill wished to ensure the requirement of the Constitutional Court by making mandatory the employment of technical means ensuring swift communication of decisions. The Bill posited that in the case of an election complaint the fax number or electronic mail address of the complainant must be given, and that in the lack of these, the fax number or electronic mail address of an authorised messenger must be supplied. It was also stipulated that incomplete complaints submitted must be rejected without due examination.

The legislation has to ensure that those entitled to submit a complaint are informed of the election committee’s decision with the shortest delay possible. For this reason it would be warranted to devise rules for the mode in which resolutions are to be conveyed swiftly during the election procedure. We found it contestable, however, that a complaint must be rejected simply for the reason that the voter wishing to exercise the right of remedy does not have access to either a fax machine or a computer, and that there is nobody in possession of the necessary technical equipment who could be requested to act as an authorised messenger in their immediate area.[12] In our opinion it is likely that this legislation, in terms of current infrastructure, would deprive the majority of eligible voters of the opportunity to file an electoral complaint.

Further constitutional concerns also arose in connection with the draft law. According to the practice of the Constitutional Court, ”Fundamental laws and content of freedom may be limited by law proportionately, to a necessary degree and only in unavoidable cases in order to protect other fundamental laws or constitutional values”.

The Bill wished to tighten the conditions for submitting a complaint, itself based on the very same constitutional right, in the interests of the right to remedy. Yet since this is not the only solution available for the swift communication of decisions, the legal restriction would have been neither unavoidable nor to the necessary degree. From a technical point of view it would be possible to implement the following system: the local election office could be placed in charge of communicating resolutions as messenger according to the given postal address. It speaks in favour of this solution that election offices are in possession of equipment required for receiving faxes or electronic mails, and further that it is the role of these bodies to ensure that other election documents – e.g. polling cards, candidature slips – reach electors.

In order to prevent legislation in breach of constitutional rights, we recommended to the Parliament by way of the Constitution and Justice Committee that the provision of a fax number or electronic mail address should not be made a prerequisite for the validity of a filed complaint. The Parliament supported the individual amendment proposal submitted on this subject with 327 yes votes and 10 abstentions. Thus the contested regulation did not enter the adopted law. Nevertheless we would like hereby to draw attention to the fact that there remains a pressing need for new legislation on the right to remedy, since the Parliament had to repeal the aforementioned unconstitutionality by default.

A case from the past year pointed to further flaws in the Election Procedures Act. A local election committee announced a by-election after none of the thirteen candidates entitled to fill a vacant minority self-government mandate accepted the post of representative. At the time of putting the resolution in writing, the name of one of the candidates was not displayed through oversight. The local election committee redressed the problem by bringing a resolution two days later to supplement the list of those who had declined the post of representative.

In our opinion the local election committee proceeded in a reasonable way, since they had clearly omitted the name of the candidate by oversight, and the addition did not alter the content of the resolution. The Election Procedures Act, however, does not provide for the possibility of supplementation or correction of resolutions brought by election committees. The rules on this are laid down by the IV Act of 1957 on General State Administrative Procedures (hereinafter: GSAP). Thus the question must be addressed of whether or not in the course of election procedures there is a place for applying the GSAP by way of supplement to the Election Procedures Act.

One stance is that the Election Procedures Act does not offer provisions for numerous questions, rendering it necessary and expedient to enlist the aid of the GSAP, since problems arising in practice can only be solved in this way.

This interpretation of the law gives cause for concern, however, since the GSAP unambiguously lists those areas of law where there is a place for its supplementary application. Election procedures do not feature within this list, thus the provisions of the GSAP are not authoritative in this regard.

The legal situation was rendered unambiguous by the adoption of the CXL Act of 2004 on General Rules for Public Administration Authority Procedures and Service Provision (hereinafter: PAAPSP). The Parliament namely ordained that the new procedural rules coming into force on November 1^st 2005 in the place of the GSAP do not refer to election procedures.

In the context of the current statutory environment there is, therefore, no legal basis for election committees to supplement or correct their resolutions under their own competences. We consider this a deficiency of the legal regulations since – as the above example also exemplified – the possibility can not be excluded that errors may arise concerning names, numbers, calculations, or that an item of data may accidentally be omitted when committees write resolutions. On being addressed, the National Election Committee replied that they agree with the problem raised by us and judge further expert consultations to be called for.

The failings of the Election Procedures Act can not, however, be narrowed down purely to the questions discussed above. The Act, for example, provides rules neither for proof, legal representation, nor for the language use rights of electors. For this reason, we advise in this report as elsewhere that governmental bodies responsible for codification review the question of which procedural rules need to be framed in order for the requirement of constitutionality to be upheld.

4. Certain problems concerning the running of minority self-governments

In legal terms there is no inferior-superior relationship between local minority self-governments and municipal governments: their legal status is essentially the same, the only substantial difference is in terms of their set of tasks and competences.[13] In spite of this a significant number of municipal governments do not regard minority self-governments as equal partners. If we consider how this ”mindset” has developed, it has played a crucial part that minority self-governments are on the whole not in possession of separate infrastructure. According to the laws in effect, representative bodies ensure the necessary conditions for operation of minority self-governments i.e. the cost of premises, postage and copying of documents. In the Hungarian legal system there is no other instance of a public law subject being compelled to fulfil the duties laid down for it in law under such doubtful circumstances.

The most important aim in establishing the minority self-government system was to ensure that minority communities are represented in an institutionalised form in decision-making procedures of the municipal governments. It follows from this that minority self-governments are entitled to consult with the representative body on any question affecting the situation of the community they represent. The instance outlined below serves as a good illustration that a certain number of municipal governments do not interpret correctly the set of tasks of minority self-governments either due to lack of regard for the ”spirit” of the law, or because they are not alive to the legislator’s original aim.

In one settlement the sole member of the representative body who had gained a mandate as a minority representative initiated the establishment of a committee to deal with minority affairs. The Gypsy minority self-government also supported the proposal and requested that the Roma representative who had put forward the proposal be selected as president of the committee. To support this aim a petition even got underway, which was supported by the majority of the local Roma community. Whilst the representative body did indeed set up the minority committee, a representative of Hungarian nationality was chosen to be its president, and the Roma representative did not even gain a place on the committee. On the committee set up to prepare decisions relating to Roma affairs, there was in all one external Roma member, who, however stepped down in the month following the establishment of the body. Thereafter the committee in the course of a year did not carry out any substantial work, nor did it even hold sittings.

The Local Government Act merely states that the representative body is obliged to set up a committee for minority affairs at the initiation of those members of the board who have gained their mandate as minority representatives. There is no regulation in law positively stating that that it has to agree with the minority self-government on the question of members prior to the committee being established. It is evident, however, that this obligation, even in the absence of an explicit provision in law, follows from the fact that the minority self-government is an organisation vested with legal entity of a public law character for self-administration of the minority community.

Under Articles 42 and 44 of the Constitution, the right to manage public matters of local interests is granted to local communities of eligible voters, who may exercise this right either in the form of a local referendum or by means of a representative body. The provisions of laws written in the interests of democratic operation allow for this basic principle to be realised. Among these can be classified section 24 (2) of the Local Government Act, which states that: ”It is warranted to elect into the committee a representative of a major organization which provides services within the competence of the committee, or the delegate of a social organisation”. It is a legitimate demand, therefore, that a representative of the given minority (or minorities) should also participate in the work of a committee dealing with minority affairs.

One of the most important entitlements of minority local governments is that they may exert influence over the decisions of municipal governments in instances laid down by law. The choice of members for a committee dealing with minority rights is a question fundamentally affecting the minority’s circumstances. This clearly follows from the fact that its function is precisely that of representing minority interests, facilitating these interests being met on the representative body or during preparation of decisions. It is the indisputable right, therefore, of the minority self-government to make a proposal to the representative body on members to be selected for a minority committee.

In order for a minority committee to be able to fulfil its set of tasks with due effectiveness it is necessary for it to cooperate with the minority self-government. It is open to question, however, whether a productive working relationship can come to pass if members of the community do not gain places on a committee set up to represent their interests in a settlement where the vast majority of the residents are Roma. In our opinion the fact that the minority self-government was not included in the phase of decision-making on the selection of the members of the committee ran counter to the aim of the legal institution.

In the interests of the constitutional right to minority representation being upheld, we proposed to the representative body that they consult with the Roma self-government on the identity of committee members in order to ensure the statutory operation of the minority committee.

Whilst the representative body did indeed begin discussions with the minority self-government in compliance with our proposal, it maintained its unwillingness to select the Roma representative as the committee’s president.[14] We do not judge the matter to have been concluded with our initiative, and are continuing to press for proper dialogue between the two bodies.

In numerous settlements difficulties are caused in practice by the interpretation of section 28 of the Minorities Act, according to which: ”The mayor's office, established by the municipal government – as stipulated by organisational and operational regulations - is obliged to assist the work of local minority self- governments”. Our experience tells us that a significant number of municipal governments only supply the minimum support laid down by the Act – indeed in many cases not even that - even should their circumstances allow them to offer far greater help. Here we are not necessarily thinking of assistance purely financial in nature. It is a common complaint that minority self-governments do not receive support in writing applications or in arranging community events. Some minority self-governments report that it is of no purpose inviting the local mayor or notary to their sittings due to unwillingness even to debate problems jointly.[15] It goes without saying that these complaints could be resolved locally without our intervention if those concerned would ”take seriously” their obligation towards cooperation.

The possibilities for minority self-governments to exercise their rights are not only limited by the absence of a suitable partner-to-partner relationship with the municipal government. We have also come across cases where legislative deficiencies prevent minority self-governments from functioning effectively.

During the past year, whilst examining a local building regulation, we observed that Act LXXVIII of 1997 on the Formation and Protection of the Built Environment (Built Environment Act) does not include provisions for the rights of minority self-governments.

Among the fundamental public service tasks of local governments is the organisation of the settlement. One of the means for this is that of creating local building regulations and drawing up draft regulations. Local building regulations are by-laws which set down and ensure building rules in accordance with local features. It follows from this that these regulations have a decisive influence on the development of the settlement and its surroundings, as well as the living conditions of the inhabitants. When legislating, therefore, the representative body has to endeavour to reconcile the interests of the settlement with the rightful private interests of inhabitants. The latter requirement offers the reason why the passing of regulations has to be preceded by far-reaching talks. It is not permissible for the by-law to be brought without the prescribed process of soliciting opinions. The Constitutional Court in several resolutions has stated that the obligation of holding negotiations and including residents in the process is a procedural requirement of legal guarantee not prescribed by rules of law in the case of other by-laws being passed. According to the standpoint consistently upheld by the Constitutional Court, the procedure of soliciting opinions has to be conducted not only prior to creating local building regulations, but also to amending them.

Section 9 of the Built Environment Act posits that prior to determining or approving local building regulations the mayor is obliged to, ”Seek the opinion of the various public administration bodies defined by the law, the relevant municipal government bodies and interest representation bodies, as well as of social organisations”.

Whilst the law does not specifically refer to minority self-governments, the Minorities Act vests these bodies with the right to consensus in the course of framing regulations concerning the preservation and tending of historical settlements and architectural monuments. The passing of local building regulations does not necessarily fall into this category, however, since whilst in principle it is possible to address in one by-law both the former issue and the protection of architectural and natural assets of local significance, representative bodies usually create a separate rule of law on this subject. It is evident that the legislator did not wish to exclude minority self-governments from the procedure of creating by-laws, and can in all likelihood be attributed to the neglect of the drafter of the law (the ministry conducting the codification). In the interests of legal certainty, we recommend in this report as elsewhere that minority self-governments’ right to opinion be laid down in the Built Environment Act. Irrespective of this, we still do not find it in keeping with the law that municipal governments fail to send minority self-governments drafts for the creation or amendment of local building regulations.

A fundamental prerequisite for the effective functioning of minority self-governments is that they be vested with an unambiguously determined set of tasks and competences. The current process of amending minority legislation provides an opportunity for the Parliament to review in which further legal relations there is still a need to grant minority self-governments entitlements to joint decision making. Alongside amendments to legal provisions, however, there is also an important need for dispensers of justice to strive consciously for a ”minority friendly” interpretation of the laws. Minority self-governments will truly become embedded in the public law institutional system if the view becomes generally accepted that cooperation is not merely a question of complying with provisions of law, but rather a fundamental requirement of a state founded on the rule of law which can be expected of municipal governments and authorities.

5. Cases concerned with the termination of minority self-government representative mandates

2004 was the half-way point in this particular minority self-government election cycle. In our experience, changing of members on these bodies is particularly common during this period. Some representatives voluntarily leave their public posts at this time, whilst others relinquish their mandates as a result of conflicts coming to a head within minority self-governments.

In the past year we received several complaints in which presidents of minority self-governments raised the grievance that some representatives had not stepped down from their post, despite the fact that they had withdrawn from the work involved and did not even participate in the sittings of the body. The question arose, therefore, of whether the rule of Act XCVI of 2000 on the Legal Status of Local Government Representatives (Legal Status Act) according to which the post of the local government representative is discontinued should the representative not participate in representative body sittings over the course of a year is applicable in such instances or not .

In reply we explained that the establishment of minority self-governments is a constitutional right of national and ethnic minorities. The election of members of the body and the formation of the self-government, however, does not in itself ensure the realisation of this right. It is a further requirement that rules indispensable for the functioning of the body lie at their disposal. In the absence of legal provisions, therefore, the means of analogy has to be used to determine instances for the termination of the mandate of a minority self-government representative, i.e. provisions for local governments have to be applied accordingly to minority self-governments.[16]

It is evident that if a minority self-government representative withdraws from the work of the body for a long period, then their conduct will restrict the lawful functioning of the body and jeopardise its ability to fulfil its task.

This is particularly so in the case of a minority self-government composed of three members since the regular non-attendance of one representative is enough to make doubtful the holding of sittings with a quorum. It is possible to surmount this problem with an appropriate legal interpretation having regard for the public law character of minority self-governments. In order to hinder the misuse of rights there is a case for the sanction laid down in the Legal Status Act against representatives absent from sittings over the course of a year to be made applicable to minority self-governments also.

One minority self-government, guided by our interpretation of the law, established that the mandate of a representative who had not taken part in sittings for one year had ended based on the relevant provision of the Legal Status Act. The public administration office filed a legality opinion with regard to the resolution, then, following the rejection of this, requested that the matter be reviewed by the judiciary. The county court made use of our standpoint in reaching its decision. It stated that provisions of the Legal Status Act which conform with the provisions of the Minorities Act may also be applied to representatives of minority self-governments. According to the justification for their ruling, ”The lawful functioning of minority self-governments and their ability to fulfil their tasks would be threatened were the rules not applicable”. The Court also expressed the opinion that: ”Incompatibility is exclusively the only grounds for termination of a mandate regarding which it can arise as a question of jurisdiction to what extent it may be applied to the members of the minority self-government bodies”.

We sent the verdict to the Ministry of the Interior and requested that they take measures in order for public administration offices and minority self-governments to become acquainted with this interpretation of the law. The Ministry complied with our request and set out a position conducive to uniform implementation of regulations in the Local Government Bulletin.

One provision of the Legal Status Act gave rise to numerous legal debates in the past year. We received many complaints from minority self-government representatives reporting that they gave their resignation by word of mouth during a dispute at one of the sittings purely as a result of their heated temper at the time and not because they seriously intended to give up their mandate. We also encountered instances where a representative questioned the authenticity of minutes taken at the minority self-government sitting and claimed not to have stood down from their post in actual fact, but merely to have raised the possibility of doing so. The representatives requested our assistance in enabling them to retain their mandates despite their resignations.

The Legal Status Act provides that a self-government representative may announce their resignation at the sitting of the representative body. There is a requirement that the resignation and the termination of the post be set down in the minutes of the sitting. The resignation may not be retracted.

It follows from this that if a representative makes a declaration at a sitting from which their resignation from the post can be understood, then, on the strength of the Act their mandate is discontinued with this very declaration. There is no possibility for the representative to later – or even immediately after the declaration has been spoken – to reconsider and retract their declaration. In view of these cases, we consider there is a need to think through whether it is reasonable for the Legal Status Act to apply such severe legal consequences to a statement made in the heat of a dispute (or in some instances to a statement giving rise to misunderstanding). A spoken declaration can also be questioned seeing as resignations are often provoked by personal discord within the body. The minutes of the sitting are then attested by the very representatives who are in conflict with the member of the self-government who has stood down. Naturally we are not supposing the deliberate ”falsification” of minutes, yet there is a real danger that representatives – by reason of their partiality or the strained atmosphere provoked by the dispute – may regard what was in fact an imprecisely expressed declaration (for example, raising the prospect or the ”threat” of standing down) as a valid resignation. In such instances verification is very difficult since sittings are often only attended by representatives without a sound recording being made.

On the basis of the above explanation we think there is a case for recording in law that a resignation only be regarded of legal effect if made in writing.

In the past year our opinion was also sought regarding the lawfulness of an unusual resignation. A local government representative who had gained a minority preferential mandate stepped down from his post, yet wished to carry on acting as spokesman. The minority candidate next on the list took on the local government mandate that had been left unfilled, thus both of them would have represented the given community.

A minority spokesman is the national or ethnic minority candidate who received the most votes in the local government general elections of the given settlement. The post of spokesman may be won with just one vote if no other minority candidate wins more votes. In so far as the spokesman does not achieve the number of votes required for a mandate they do not become a member of the representative body and can only take part in sittings with the right of consultation, i.e. without the right to vote. A spokesman for the local government can only take on the role of minority representative if no minority self-government has been set up in the given settlement or the minority self-government has ceased to exist.

Whilst a condition of gaining the post of spokesman is indeed that of running as a candidate for local government representative, it is not necessary to gain a mandate, or be in possession of a mandate, to take on the tasks of spokesman. The regulation, therefore, allows for the possibility of these two public law roles to be undertaken separately. It follows from this that giving up a representative mandate does not necessarily result in the loss of the spokesman post. This interpretation is backed up by the fact that the rules of the Legal Status Act concerning incompatibility only refer to local government representatives and not to spokesmen in so far as they are not members of the body. Thus if a representative’s post ends due to incompatibility only their mandate will be lost; there is implicitly no legal impediment to acting as spokesman.

We had to inform the complainant that a different legal situation comes into play if the place left empty is filled by the candidate next on the list belonging to the same minority as the representative who has stood down. Act LXIV of 1990 on the Election of the Members and Mayors of Local Governments namely posits that : ”If the post of a representative selected either from the settlement small list or from the minority small list is left vacant, the post is occupied by the candidate who won the highest number of votes”. (In the case of the compensation list the candidate announced by the nominating organisation or – in the absence of an announcement – the candidate next on the list wins the mandate.) Following the resignation of the former representative, the representative taking on the empty post is regarded as the candidate who won the most votes from the given community, and thus must be regarded as the minority spokesman on the strength of the law.

The Constitutional Court has pointed to the fact in several resolutions that the legal status of local government representatives should be regulated in law. In the interests of legal certainty there is a need to settle these questions – in particular the termination of the representative mandate – for minority self-governments too. In our view, the Bill currently before the Parliament would supply a suitable public law framework for the functioning of minority self-governments, for which reason we support its adoption at the earliest possible date.

Chapter II
The situation of minority language rights

1. A general characterisation of authority cases not conducted in Hungarian

In the various authority procedures carried out in Hungary – including here the judiciary’s activity in administration of justice and also local government authority cases – authorities are relatively rarely compelled to use foreign languages.

It is a long vaunted ”slogan” of the Hungarian legal system that lack of familiarity with the Hungarian language may not disadvantage anyone in any given procedure. Set against this, we are bound to share the opinion of Prof. Géza Kilényi, according to which lack of familiarity with Hungarian – with perhaps only the mentionable exception of criminal proceedings – does indeed create a disadvantage in procedures before Hungarian authorities, or entails at least considerably higher expenses for the client.

It can be said in general of the Hungarian public administration system, but also of authorities participating in the administration of justice, that communication with either natural or artificial persons who do not speak Hungarian can not be considered standard.

It follows from the provisions of the Minorities Act that equal status is enjoyed by the Hungarian language and by the legally recognised minority languages. By contrast, there is little likelihood that efficient and quick transaction of affairs will take place in languages spoken by the various national minorities, even on matters that can be regarded as straightforward such as birth registration.[17]

The sole exception is that of cases belonging to the category of alien policing and asylum. Common to these is that the Hungarian Border Guard usually detains illegal migrants who do not speak Hungarian, and in certain cases who originate from countries beyond Europe. Communication with them, however, involves the fact that they are usually not even able (or do not wish to) name their place of origin, or to confirm this with documents.[18]

In summary: it can generally be said that lack of familiarity with the Hungarian language – though here can also be included lack of familiarity with Hungarian laws of vital importance for foreigners - does indeed cause a disadvantage in the course of every day dispensation of justice, in the light of which the much vaunted and fine-sounding ”legal principle”, according to which no one may suffer disadvantage through lack of familiarity with the Hungarian language, remains a dead letter.

2. Theoretical and practical problems of minority language use

Concerning the language use rights of Hungary’s legally recognised minorities, we must without fail make mention - in addition to the provisions of the Minorities Act - of the provisions of the XL Act of 1999 on Promulgation of the European Charter for Regional or Minority Languages (hereinafter: Charter), done in Strasbourg on 5 November 1992. The Charter restricted - incomprehensibly in terms of law source theory (also) - the sphere of favoured linguistic minority communities more narrowly than that declared by the Minorities Act adopted in 1993. For in place of the 14 minority languages listed in the Minorities Act, the XL Act promulgating an international convention only extended its force to the Croatian, German, Romanian, Serbian, Slovakian and Slovenian languages, which means that the two language dialects (Romany and Beás) spoken by the largest home minority, and to be considered of primary importance, were omitted.

We nevertheless consider accession to the Charter to be of historic significance, given that it determined regional or minority language use in relation to the use of the official language/languages (dialects) of various states, and firmly advocated that these languages (literally, those spoken by communities being in a minority) should remain intact independent of ”geographical area”, or ”existing or new administrative divisions”, through being used in private life and public life, in speech and in writing.

The Charter includes several such fine declarations, which, however, following the choice of words of Prof. Kilényi referred to above, can easily be classed as ”slogans”. For the ”facilitation” and ”encouragement” of the use of minority languages in public administration or court proceedings can in fact come up against serious setbacks.[19]

In the Parliamentary Commissioner’s annual reports of the past years we have regularly drawn attention to the situation of minority languages, and in all cases have had to conclude that a person belonging to any one of the given minorities consistently attempting to exercise their rights connected to use of mother tongue would find themselves – in almost any authority procedure - in an impossible situation.[20]

In the field of language rights we can mention as the sole outcome or advance the positive fact that – possibly as a result of our earlier recommendations – the main obstacle until now regarding registration of births has been removed: in the recent past the Ministry of the Interior together with the Ministry of Youth, Family, Social Affairs and Equal Opportunities prepared a list of national minority first names, in fact even drew up the format of the national minority dual language register. According to information received from the leaders of the two departments, the Ministry of the Interior has begun the computerized introduction of the new birth register programme, as well as the training of birth registrars.

While assessing language rights, we must naturally mention the important fact that Hungary became a full legal member of the EU on May 1^st 2004. Below we would like, therefore, – under several thematic headings - to address other issues concerning the realisation of language rights over and above the minority rights situation.

3. The situation of language use rights in certain procedural laws

The body of procedural rules carry into effect that which is prescribed by, prohibited or a permitted by substantive law, assuming that we are not speaking of so-called ex lege regulations. It is, therefore, procedural rules that bring subjects of law into a situation where they can enforce, carry into effect or defend, their rights, obligations and interests. A legally regulated procedure is none other than a chain of formalised actions bearing closely upon one another arising between the authorities and the subject of law, the aim of which is for a ”just” decision to be brought that is unbiased, proven and based on the relevant set of facts, and which satisfies requirements related to the jurisdiction and public administration in terms of the Constitution, statutes and other rules of law related to the given case.

In order for the decision, and the procedure preceding the decision – that is the manner of treatment – to be found acceptable by the subject of law, one principle requirement is that of successful communication with the authorities involved. For the basis of every kind of abidance to the law is the comprehension of, or help in comprehension of, requirements deemed lawful. The subject’s sovereign decision can be founded on this in the following respects: whether they perceive the lawfulness, reasonableness, moral content etc. of authority will, or whether they wish to have recourse to the available possibilities of legal remedy, or should these have been exhausted, to subject themselves to the legally binding decision brought, and finally, should they be granted certain rights, of whether of not they can take advantage of the legal possibilities granted. Let us add that this is far from being merely a matter of the main ruling, since there is a need for communication on numerous occasions ”on the way”, whether it be a matter of requesting missing documents, briefing a client on their rights, understanding the main points of a witness statement or expert opinion, order being maintained in the trial, a motion for exclusion, or the judgement of a response given to a request for verification etc.

In this sphere, therefore, a fundamental requirement of legal principle – arising from the maxim of equality before the law as part of a ”fair” trial - is the right to the case’s unimpeded communication or – using the customary but imprecise expression used here in Hungary - the right to use of mother tongue. This term is imprecise and misleading since for home minorities, for example, Hungarian is just as much a mother tongue as their own minority languages (for this reason, the PAAPSP no longer refers to mother tongue but to the language of the given minority), not to mention the rights of persons hindered in communication for other reasons and of persons with disabilities requiring the aid of a sign interpreter in order to be able to communicate effectively with the authorities.

It was not by chance that, in connection with drafting the new 1996 Constitution, the question arose in the expert materials of whether the use of mother tongue must be ensured before the courts or else the use of a language known by the person participating in the trial.[21]

The Constitution does not recognise a state language, and only mentions the right to use of mother tongue with respect to national and ethnic minorities declared as ”constituent factors in the State”, making reference to mother-tongue education, the right to use names as spelled and pronounced in the minority’s own language, whilst remaining silent on the right to use of mother tongue in the various legal procedures. Nevertheless we can infer the right to unimpeded communication from other fundamental rights provisions. We would point primarily to the constitutional requirement for fair procedure - though admittedly only valid for judicial proceedings.[22] It follows from this that, though it affects an incomparably higher proportion of people than the justice system, there has long been lacking from the Constitution a legal system of requirements [23] for the operation of public administration, and in this sphere the naming of communication rights.

Let us now conduct a brief review of the position of positive law on a statutory level relating to the language use right in view of the most fundamental types of procedures.

The Code of Civil Procedure (hereinafter: CCP) has declared since its inception that no one may suffer disadvantage during proceedings as a consequence of their lack of knowledge of Hungarian - including both spoken and written actions – and therefore allows for the possibility of mother tongue, regional language or minority language to be used.

The 1999 amendment to the CCP did not resolve, however, the anomaly between the unlimited use of mother tongue declared, and the strongly limiting rule on employment of an interpreter: Section 184 (1) of the CCP namely posits that if the person to be heard in the trial does not speak Hungarian, and the court dealing with the case does not have the requisite expertise in the language spoken by that person, then an interpreter must be engaged for their hearing. According to the commentary of the CCP, the civic right concerned with language use (it entered the law in 1972) is the stronger rule, thus it is necessary to employ an interpreter even should a Hungarian-speaking subject who does not have Hungarian as their mother tongue assert the right to this.[24] The state is obliged to advance the costs of translation and interpreting, whilst rules on trial costs determine the bearing of the costs.

The Act on Criminal Procedure likewise states that Hungarian is the official language for procedures, and declares the principle of eliminating disadvantage caused by ”lack of knowledge”, whilst including among its general provisions the possibility of use of a third language according to the choice of the concerned.

If we consider the person against whom criminal proceedings are being conducted, in comparison with the other figures in the trial, they will require increased continuous and professional legal defence in the sphere of communication rights too: the difference in both power and knowledge between the authorities bringing the action and the accused as well as the many possibilities for fundamental rights to be constrained make warranted the rule according to which the participation of a defence counsel is obligatory should the defendant not speak Hungarian and not know the language in which the trial is being conducted.

The practice of criminal court judges even adds to the already familiar generous rule of the CCP, according to which the right to use of mother tongue – independent of language knowledge – applies to all subjects of proceedings. According to this, if the mother tongue of the accused is not Hungarian, then they may use their own mother tongue even if a Hungarian citizen and possessing knowledge of the Hungarian language. They may declare the wish to use their mother tongue at any stage in the proceedings. From that point onwards an interpreter must be provided, though the provision of a defence counsel is not mandatory for this reason (BH 1989. 10.).

The practice of judges also takes the position that the basic principle of defence and use of mother tongue is not contravened if an interpreter translates the content of an order for the extension of the remand of a suspect who does not have Hungarian as a mother tongue, rather than a written translation being prepared (BH1998. 11).

Regarding the unlimited use of mother tongue, alongside two large procedural codices can also be listed the Act on Offences, which is at least consistent and thus does not declare the familiar catchphrase that disadvantage must not be caused.[25] In comparison with the undifferentiated text of similar content of the GSAP, here the one innovation made is that a person whose mother tongue is not Hungarian may make a choice between their mother tongue and a language selected by them, entirely independently of which languages the official is able to communicate in.[26]

One ”alien rights” statute, the XXIX Act of 2001 on the Entry and Stay of Foreigners (Aliens Act) partially breaks the ”spell” of the aforementioned unlimited use of mother tongue. According to the Aliens Act, in alien policing cases it is necessary to inform the foreigner by writing in their own language or foreign language understood by them of resolutions brought during public administration procedures, and also to inform the foreigner verbally in their presence of resolutions brought during court proceedings as well as resolutions ordering measures to be taken to restrict personal freedom brought during procedures of a public administration body.

According to the Aliens Act, in the instance of foreign language use – should the representative of the relevant authority not speak the language in question – use must be made of an interpreter. The state bears the interpreter’s charges and expenses.[27] It is naturally to be welcomed that the Aliens Act has by now parted with catchphrases, makes use of the expression of foreign language (though it is to be implied by this that the given language is foreign in comparison to the mother tongue of the concerned), and finally takes into account the language knowledge of the official in charge, thus making it possible that a language mutually understood by all actors in the procedure be used as the language of the procedure. The problem of principle arising here is that the sending of, for example, a resolution written in Hungarian can – due to failure to understand the resolution – surely not be in keeping with regulations (and in that case can not become legally binding). The law, nevertheless, has reserved communication to be made in a mother tongue or foreign language expressly for the announcement of judicial rulings and coercive measures!

Our other fundamental statute concerning ”alien rights” is the CXXXIX Act of 1997 on Asylum, according to which a petitioner participates in the trial in person, and it is mandatory for them to be given a hearing during which they may use, both in speech and writing, either their mother tongue or a language understood by them. In this sentence there is surely a need for interpretation as to whether this use of mother tongue is valid only in the course of the hearing or for the duration of the whole procedure. It is clear that it is a question of the latter, since alongside personal presence prevailing, the presence of the concerned is not required for numerous statements of purpose given by the authorities, and vice-versa, the petitioner in the course of the procedure may also address the authority in writing.

There is a further rule in asylum procedures that the main resolution must be disclosed in writing, and also be proclaimed in the mother tongue of the given foreigner or another language known by the foreigner. As opposed to the Aliens Act, however, there is no mention here of the language skills of the official in charge, and the language use rights connected with the communication of the ruling are lacking.

Though they do not belong to the strict conceptual sphere of an authority, so-called public service bodies (energy, water-drainage, telecommunications services) have an enormous customer base, largely enjoy a clear monopoly, and are able to regulate our lives one-sidedly on numerous questions. The laws relating to public service bodies do not make reference to the language of consumers or subscribers and how relations are to be maintained. In this sphere the PAAPSP can not be brought up as an underlying law, since these organisations maintain contractual relations (though bearing a strong public law character) with their clients. Service contract samples, therefore, do not exist in foreign languages and issuing of bills is also in Hungarian. The rules which do concern foreigners all refer to the set of instances where the service provider is under foreign ownership, since it is necessary in this instance to submit copies of the foundation deed, charter, certificate of incorporation etc. in an attested Hungarian translation.

Procedural rules – concerning communication with authorities - indispensable for those not understanding Hungarian, are not be found in the world of financial administration either.[28] It follows, however, from this ”silence” that the provisions of the PAAPSP will be valid for the use of foreign languages. In the fiscal sphere of such delicate effect on our finances is foreign language printed matter (for example, in local government tax authority offices) available? And are the other material and human resources for a language infrastructure in place?

From within the range of public institution services we shall highlight the sphere of health and social services given that this field affects foreigners en masse, paying attention to the question of whether language use rules are present or not in the sphere of health rights and social rights. In answer, Act CLIV of 1997 on Health Affairs is silent on the possibilities of communication – in certain cases life-saving - between patients and health professionals. All that this Act declares is that, regarding choice of doctor, a patient has the right to choose a doctor to treat them who is competent regarding their condition and the nature of the health service required, and who is capable of maintaining relations in Hungarian.

Neither Act III of 1993 on Social Administration and Social Provisions (Social Act) nor Act XXXI of 1997 on Child Protection and Guardianship Administration (Child Protection Act) contain provisions on the use of foreign languages, yet numerous life situations have arisen in the past concerning non-Hungarian citizens where social and child protection was called for, issued either as a civic right or deemed necessary on consideration. In this domain not only decisions of authorities have to be taken into consideration (here the PAAPSP is authoritative), but also public institution services bringing into effect actual service tasks, on which no form of legal brief can be found.

Naturally we must bear in mind that the true exercise of rights depends not only on the technicality of regulations or on legal practice freed from xenophobic reflexes, but also assumes the presence of a language use apparatus. It is just as much a part of this that officials possess language skills rendering them capable of conversing and formulating resolutions at least in English, as that any given public administration body to be able to call up from a computer data bank a list of people and organisations that can be nominated as translators or interpreters (and moreover broken down according to case type since from time to time there is an express need for knowledge of technical terminology and expertise). Here we should also include guidance for clients, printed matter needed for a petition to be considered, electronic forms etc. in several of the world languages.

Naturally all of the above would have to become embedded in a system of customer services far more advanced than the present one, in which each customer service would possess attested information of full value in several languages as well as the necessary IT and telephonic conditions to allow for communication to be carried out in several languages. Multilingual administrative program packages would also be needed, facilitating tailored guidance and transaction of affairs for cases affecting the population en masse.[29]

4. New language use aspects of the Act on Public Administration Authority Procedures and Service Provision in the light of minority rights and EU civil law

With the adoption of the PAAPSP, a long-held aspiration of the legal profession materialised: the work of revising the GSAP and separate procedural rules, taking many years and involving many people, finally paid off, and it is hoped that a codex has come into being which will last for many decades, encompassing by far the largest number and type of cases, from whose force it will not be possible to ”hide” in the future, by way of laws or even decrees. Nor will it be possible to conceal in the legal material of one or other administrative branch the possibilities, unable to be followed by clients due to their volume and content, of exercise of duties or assertion of rights.

Nearly every type of public administration procedure has to possess the minimum of client rights to guarantee that the client receives a main verdict well-founded both factually and legally on the basis of easily transparent rules, within a reasonable time frame, and complying with the requirements of fair procedure. In the absence of these factors, possibilities for remedy should open up, where the client should, with good grounds, be able to trust in the impartial reconsideration of the verdict.[30] The right to language use, not necessarily meaning the choice of mother tongue, belongs – as elaborated above - to the minimum requirements of client rights.

The PAAPSP – similarly to the two major procedural codices – makes Hungarian the official language for procedures, breaking with the much contended earlier regulation enabling the unrestricted use of mother tongue in speech and in writing, which were it to have been taken seriously would have long brought authority administration to a halt.

The purport of Hungarian as an ”official language” is rendered uncertain (or broadened out?), however, when the law

a) by partially adopting the minority language use rules of the Minorities Act, also raises [31] the languages of national and ethnic minorities to the language of procedures, should a minority organisation, or the member of a minority under the force of the Minorities Act request this,

b) allows that municipal minority self-governments – by way of decree – make ”official” the use of the given minority language alongside Hungarian in authority cases belonging to the minority government’s sphere of authority.

The ”legal equality” of minority languages and Hungarian, therefore, immediately brings into question the ”official” status of the Hungarian language, whilst of course we are aware that in the practice of authorities the danger of minority languages being used has hardly constituted a threat to the present date, and nor will it do so hereupon. In our earlier reports we referred to the fact that unfortunately for the majority of minorities, the language of the minority now counts as foreign. More energy would be expended on studying the given language were direct advantages to arise from this.[32]

The unfortunate tendency towards language loss was confirmed by our 2002 investigation. According to these figures, barely a quarter of minority self-governments gave the reply that there was opportunity and demand in the given settlement for use of the minority language.

Within the sphere of language use rights another group ”privileged” by the PAAPSP is that of non-Hungarian citizens not knowing Hungarian, who – we shall now summarise the procedural position – have ”immediate” authority cases. This can mean one of two things:

a) during their stay here an authority commences proceedings against them involving immediate measures,

b) or they apply to an authority for immediate legal defence.

The common feature of this set of clients is their pressing need for legal assistance. We should think of various forms of investigation carried out by authorities on the spot, or the loss of documents, licence plate etc.

In the course of law enforcement a problem is raised by the definition of ”taking measures”, since in Hungarian public law several acts can be connected with this term, which have little to do with one another (”measures” can feature as sanctions, for example, in criminal, summary offences and public administration law, they can also appear as coercive acts such as in the various procedural laws, alongside which the definition may also be used in a wholly general sense under which several kinds of acts of legal consequence can be understood).

According to the standpoint of the discipline of Law and Order, measures are a spoken manifestation of purpose by an authority carrying immediate obligation of execution which the representative of the proceeding authority (the so-called authority organ) may directly enforce – without waiting for the result of legal remedy - in the instance of opposition or refusal of execution. The PAAPSP unfortunately does not offer an interpretation of the concept, which means, therefore, that foreign clients (and primarily their Hungarian legal representatives) are likely to make use of the term, representing a guarantee of not having to pay costs, in its very widest sense.

The state advances and bears translation and interpreting costs both where minority language use is concerned and in ”immediate” cases.

In every further instance a client who does not know Hungarian has the right, should they pay the costs, to have their petition judged in their mother tongue or another intermediary language. It is, however, not comprehensible why this ”paid for language use” is narrowed down to the judgement of a case, and why this right can not be extended to any other procedural action. In addition why did the legislator forget about procedures brought by the authority but not requiring measures to be taken?

According to the PAAPSP there is only a need for an interpreter [33] if the official does not speak the foreign language used by the actor in the proceedings. It is questionable of course, whether or not the level of the official’s knowledge is a sufficient guarantee for the client, i.e. what will happen if the client insists upon a qualified interpreter?

The situation is particularly critical in those instances where the use of foreign language is a civic right (minority language use and ”immediate” cases), since the interpreter has the legal status of expert, yet the client has no right – just as they have no right in other procedures – to delegate an expert, since in this question the decision – arising from the principle of free proof – is a function of the relevant authority’s current discretion. Under such circumstances, therefore, the realisation of a constitutional right becomes degraded to a motion for proof, which of course does not mean that it was mistaken to devise something in order to prevent clearly mala fide motions aimed at prolonging proceedings.

It can, therefore, rightly be questioned whether it would not have been provident to adopt certain rules on mala fide conduct of lawsuits from the CCP (backed up by several decades of judicial practice), since it is not only by untrue claims or the suppression of significant facts that the due closure of cases can be impeded.

The likely growth in interpreting and translation demands could be restricted soon not only by much limited budgetary capacity, but also by fundamentally new regulations concerning the assignment of experts: the situation (familiar from the GSAP) by which a registered expert was obliged to take on work if requested will cease and it will become possible to reject - though with indication of reason – assigned work. Assigned work will, therefore, come to pass as an agreement between the authority and the expert. In light of the costly and uncertain nature of appointing work to experts, there will be an ever greater need for members of the proceeding authority to know foreign languages, or a least, for there to be officials working in the given public administration body – and particularly in the highest level bodies - who know well and are capable of conversing in one of the world languages.

We are not saying anything new in recognising that the ”foreign language bonuses” introduced at the time of the 2001 amendments to the Act on the Legal Status of Civil Servants are entirely inadequate to ensure that a swift and reliable language service be in operation for authority procedures, and to be able to speak of a significant presence of civil servants possessing both general language skills and familiarity with the relevant technical vocabulary.

Nor does it speak in favour of the new regulations that the PAAPSP does not mention translators and translation, even though in the great majority of public administration procedures – as the technical nature of cases becomes more pronounced – written language is indispensable today also. The legislator clearly does not which to make language use rights valid only for spoken declarations (explicit references to this can be found where minority languages and the specification of procedural costs are mentioned). It would have done no harm, nevertheless, to render this less ambiguous.

It follows from the above that in public administration authority procedures a foreigner who does not speak Hungarian has, without exception, the opportunity to communicate in their mother tongue or another intermediary language known by them. With the ”flaw” of course that there is a significant difference in terms of who bears the related costs: with the exceptions of the instance of minorities, procedures in the interests of immediate protection of the client’s rights or procedures initiated by the authority involving immediate measures, these costs have to be borne by the client, moreover in procedures initiated by a petition it is the client who has to advance the costs. Foreigners (only natural persons) are also eligible for cost exemption should the foreigner be unable to meet the costs or at least a percentage of the costs due to lack of earnings, income or property.

The status of European Union citizenship does not afford surplus rights (except if the amendment to the Minorities Act cited earlier is adopted), since this status is fundamentally of an additional nature, and differs from national citizenship in that it connects the citizen not to one state, but to the whole community.[34] For this reason every citizen of the European Union has the right to deal with any EU establishment in any one of the official EU languages and to receive due reply with justification within a reasonable time limit in the same language as that used by the petitioner.

5. Is there a need for a language use statute?

In summary of the aforementioned: the rights connected to unimpeded communication in legally regulated procedures of the judiciary, authorities, public utilities and public institutions are rather divergent. In certain cases there are no rules at all, in other cases the norms create excessive and practically unrealisable requirements for public officials. Again at other times they indicate an unwarranted lack of generosity which could jeopardise the realisation of fundamental rights. Finally, within one single codex collisions can be found, particularly prominent in the general rules declaring language use as a principle and rules governing when interpreting (or translation) may be claimed free of charge by the client.

The procedural rules on language use do not differentiate between the positions of those taking part in the case or between procedural actions.

The presence of legal loopholes and collisions, as well as the lack of uniform regulations and officials’ lack of language skills, is of real significance in public administration cases, particularly in case types involving foreigners in large numbers, since public administration procedures if compared with judicial proceedings, always offer fewer legal guarantees to the client.

It must be stressed that – also in view of the change of EU community laws to internal laws – that it is now far from being the case that only transport, asylum and alien policing administration ”deliver up” this very heterogeneous clientele. To be included here are also property purchase by foreigners, registration of births, tax, tariff and customs affairs, the partial opening up of the public services sphere to EU citizens, the practice of certain professions with chambers (for example, doctors, architects, property guards), rights and duties related to employment, entrepreneurship, education rights, claims to certain social and educational provisions etc.

All this justifiably suggests the necessity to create a uniform language use statute to extend to all procedures of the judiciary, authorities, public utilities and public institutions. In certain types of procedures and cases the legislator can naturally also be more generous than the statute, but it would no longer be possible to be ”deprived” of rights on any grounds! Such a statute would not only serve the interest (which can not be too much stressed) of providing uniform regulations and transparency for the staff and clients of law enforcement, but would also provide something new thematically: it would finally be possible to think over the necessity for differentiation – already fragmentarily present in the PAAPSP – of the right to unimpeded communication:

a) according to procedural action

b) according to the status of figures involved in the procedure

c) on the basis of differences in client position

d) taking into account the fundamental rights involvement of the case type.

Chapter III
Minority rights in education

1. A brief overview of minority education regulations and legislative aims

Since 1989 the Constitution of the Hungarian Republic has contained provisions for the status of national and ethnic minorities living here: it regards and recognises them as constituent factors in the State, and recognises and ”Ensures their collective participation in public life, the fostering of their own cultures, the use of their mother tongues and mother-tongue education, and the right to bear names taken from their own languages”.[35] The Constitution, and the Minorities Act, which serves the implementation of the Constitution, had a fundamentally political aim in establishing minority rights.

The legislator wished to declare – in effect to demonstrate to the community of states belonging to Europe – that Hungary complies with international legal standards: it does not continue a policy of assimilation, and what is more assumes the obligation that national and ethnic minority communities living in Hungary, and the natural persons belonging to those communities, retain their self-identification.[36]

Those rules of law which came into being at the beginning of the process of regime change divided the particular entitlements of minorities between individual and community minority rights, which – with the exception of the provisions contained in Article 68 (3) and (4) of the Constitution – had the fundamental aim of creating and ensuring a type of cultural autonomy.

For Article 68 (3) and (4) of the Constitution – which in part ensure minority representation, and in part the collective right linked to self-government – go beyond the bounds of ”cultural autonomy”, since they also create the possibility for minority communities to undertake a public law role. Naturally, it is a matter of political decision as to what content this type of public law role undertaking can gain in practice and as to whether it may head in the direction of ”political autonomy”. Currently the minority self-government system serves purely the realisation of cultural autonomy.

In the present chapter we would like to review one of the most important links in the chain of cultural autonomy to which minorities are entitled: the exercise of the right to minority education.

One of the fundamental conditions for the realisation of minority education is the preservation of self-identity: the preservation of the language of the given community, traditional and other cultural values. Education plays a key role since even a child growing up in a community assimilated to a lesser degree is unable to prosper in a language purely ”brought from home”, spoken within the family, and often archaic. The acquisition of language knowledge to accord with modern European requirements, and in general of modern society, can only be ensured through education within the school system.

In the question of children’s education and training, parents naturally – but also on the basis of the provisions found in Article 6 of the Constitution [37] – possess decision-reaching competency. In the question of the child’s identity, that is, in whether or not the child assumes affiliation to a minority community, it is primarily the parent who forms a decision, often as early as at the stage of choosing the name to be officially registered at birth.

Regarding education, parents bearing responsibility for their children have in general to find an answer to the following questions:

· Is ”multilingualism” useful from the point of view of the child’s future (development, life path and carrier)?

· In the given society, also taking into account the family’s characteristic way of life, would it be useful and would it serve the child’s interests if the child’s studies were conducted in the minority language, and would a qualification attained in this way enable the child to compete with their Hungarian language peers?

· Whether knowledge of the given language or qualifications requiring this language have market value in Hungary and/or Europe?

· Whether from either the point of view of the child or of the parent it is important for emotional, traditional or other reasons (for example, religious) for the child to participate in minority education?

The Minorities Act lists the right to participate in mother tongue education and culture as belonging to individual minority rights, though also having a type of community ”projection”. For according to the provisions found in the fourth chapter of the Minorities Act, in public education institutions following the general curriculum, a minority class or study group must be established and run at the request of ”the parents or legal representatives of eight pupils belonging to the same minority group”.

Whilst this rule does not raise the right to minority education from the sphere of individual rights, it does, however, render the exercising of this right ”community-natured”.

Concerning the community-nature of minority education, it must without fail be mentioned that the aforementioned chapter of the Act defines the task of assessing the need for minority education and organising of minority education as also being that of minority self-governments,[38] i.e. that there is a possibility – according to the rules of the Public Education Act – for minority self-governments to set up and maintain public education institutions.[39]

It may be said in general of the regulations referring to minority education, that they comply not only with the declaration given in Article 68 (2) of the Constitution, but also the provisions of Article 70/A (3), according to which ”The Hungarian Republic assists the realisation of equality before the law with measures aimed at eliminating unequal opportunities”. One of the main aims of the legislation ensuring minority education is, therefore, the creation of equal opportunity, and for this reason the regulations can be listed among those legal norms which carry ”positive discrimination” into effect.

This is also confirmed by the inception of the CXXV Act of 2003 on Equal Treatment and the Promotion of Equal Opportunities (Equal Treatment Act). Sections 27-29 of this Act under the chapter title of ”Education and Training” lay down the framework for the principle of equal treatment in the various educational institutions, and indicate that participation in national (minority) forms of education is a constitutionally acceptable exception. For positive discrimination – deriving from its essence – means a kind of differentiation which is not positive for all concerned: there can also be ”losers” where advantages or allowances are granted.[40]

Nevertheless, the current minority education system does not exclude the possibility of abuses, nor of discrimination revealing itself in its most varying forms. We would like to address these issues below, taking into account complaints received by our office and the legal practice which has come into being based on legislative amendments in 2004.

2. A brief account of abuses manifested in minority education based on the practice of the Parliamentary Commissioner

During the time period covered by the report we examined various types of complaints about education. In this year too, a large group of cases was formed by those complaints in which objections were raised that the rights of minority self-governments to give an opinion and to consensus were being disregarded. On this question, we shall discuss the complaints which arose in connection with the rules and running of a new legal institution, the so-called nine-member committee created by amendments in September 2003 to the Public Education Act.

We shall also report on the other large group of complaints received, which had as their grievance the discriminative behaviour of teachers. Finally we shall speak of the phenomenon of segregation and make known the report we prepared on this subject.

2.1. Cases concerning practice of the right to consensus

Hungarian minority legislation ensures the cultural autonomy of minorities with the help of so called ”cooperative decision-making” rights. This means that in instances listed by rules of law, regional governments and minority self-governments have shared powers. In the case of the right to consensus, a valid decision may not be reached without the agreement of the minority self-government. Where the right to opinion applies, however, there is only an obligation to solicit the opinion of the minority self-government, and the local government is not bound by their opinion. The widest range of questions on which consensus is obligatory can be found in the field of education.

As far as the right to consensus is concerned, from year to year the most frequent types of complaints are those bearing testimony to the fact that certain municipal governments are either not clear about the relevant laws, or do not take them seriously. In the cases we examined there were, for example, municipal governments that wished to reorganise, or shut down public education establishments, or to appoint a new head without gaining the agreement or taking into account the vetoing resolutions of minority self-governments.

The president of one minority self-government turned to us with the complaint that the municipal government has for years not sought agreement in determining the budget of a school pursuing minority education according to its foundation deed.

The municipal government’s explanation for this was that the president of the minority self-government, as head of the school, was always present when the budget was being discussed, thus they considered it superfluous to formally seek consensus.

In our reply we informed the municipal government that the right to consensus applies to the minority self-government as a body; thus, minority representatives have to give their decision in the form of a resolution on the given questions. A resolution brought by the minority self-government can not be replaced by the views of the president of the minority self-government. The municipal government accepted our guidance.

Another minority self-government objected to the procedure taken regarding the planned change of head of a local school. In their opinion, although the right to consensus accrued to them, the municipal government merely requested their opinion.

According to section 102 (11) e) of the LXXIX Act of 1993 on Public Education (Public Education Act), the right to consensus applies to minority self-governments in the case of a head being placed in charge of a so-called minority educational institution.

Section 121 (6) of the Public Education Act provides the definition of a minority institution. According to this we can speak of a minority establishment if

1) the school’s foundation deed contains the discharge of national and ethnic minority tasks, and

2) the school, does in fact discharge these tasks, and further

3) if at least 25% of pupils participate in the programme.

As a result of our examination we ascertained that the school bore the characteristics of a minority establishment. The school’s foundation deed includes the discharge of minority tasks. One form of minority education was exemplarily realised, as two public education experts also agreed. The percentage of those taking part was 64%.

In spite of our stance, the municipal government still did not seek the consensus of the minority self-government. For this reason, we approached the head of the competent public administration office with the proposal that acting within its powers of legality audit, it request in a legality opinion that the representative body withdraw their resolution. At the time of the report being written, further developments in the case are not yet known.

One minority self-government requested our assistance in a case involving the appointment of the head of an institute providing minority education. According to their complaint, the municipal government merged the nursery, which provided national minority nursery teaching, with the school which provided minority education. The municipal government subsequently omitted the provision of national minority nursery teaching from the foundation deed for the new primary education institute. All of this took place without the consensus of the minority self-government. In the given case, the municipal government did not seek the consensus of the minority self-government concerning the appointment of the head for the reason that the public education institute no longer qualified as a minority institute as a consequence of the changes.

Our examination revealed that the foundation deeds of both institutes contained the provision of national minority nursery teaching and education prior to the merger. The municipal government had accepted the minority supplementary grant for the full number of children attending the nursery. In the school, however, the number of those participating in minority education did not reach 25%.

Section 85 (4) of the Public Education Act provides that:

”The local government independently or jointly with other local governments is obliged to prepare a plan of undertaking tasks, and operating and developing networks of institutes (hereinafter referred to as municipal action plan) to facilitate the preparations for the municipal decision-making required for organising the tasks related to public education. The municipal action plan shall include a description of how the municipality shall undertake its obligatory tasks and what non-obligatory tasks the municipality intends to undertake. It shall also include propositions concerning the operation, maintenance, development and reorganisation of the system of institutions. During the preparation of the action plan, the consent of any local minority self-governments shall be obtained regarding issues that pertain to national or ethnic minorities.”

The local government did not prepare an action plan, the effect of which was that the minority self-government had no means of making use of its right to consensus concerning the reorganisation (merger). (According to the Public Education Act in force at the time of the merger, the reorganisation, if not including changes to the sphere of activities, did not count as a decision on which consensus is obligatory.) In this instance, therefore, the disregard of the right to consensus was caused by the lack of action plan.

Following the reorganisation, or merger, however, changes were also made to the foundation deed and the task of providing national minority nursery teaching was omitted. With this decision a change also occurred to the sphere of activities, for which, according to section 102 (1) of the Public Education Act, the consensus of the minority self-government should have been sought. The discontinuation of national minority nursery teaching would have been a question on which agreement is obligatory according also to sections 88 (6) and 102 (11) a) of the Public Education Act.

The municipal government justified the discontinuation of national minority nursery teaching on the grounds that the professional opinion provided by a public education expert showed that human resources were lacking. Of the minimum of two nursery teachers necessary for the task to be undertaken - though both knew and spoke the language of the given minority - only one was in possession of the qualifications stipulated by the Public Education Act, and the other nursery teacher had participated neither in accredited instruction nor national minority further training.

The local government instead of ensuring the lawful operation of the nursery school in conformance with statutory provisions, by ignoring the right to consensus of the minority self-government, and playing foul of the relevant legal provisions, discontinued the national minority nursery teaching. We established that the local government would have acted in accordance with the laws if, having observed that the qualifications of one of the nursery teachers were inadequate, it had obliged her to take part in special training, or had ensured by other means a teacher meeting the provisions. In any case there was a need to satisfy the demands of those parents asking for national minority nursery teaching to be provided. The local government did not ”merely” breach the laws by ignoring the right to consensus, but by discontinuing the national minority nursery teaching, it ”exempted” itself from one of its obligatory tasks unlawfully.

The local government, for as long as it could gain certain rights – it could collect a supplementary minority education grant - was ”unaware” of the teachers’ lack of qualifications. When, however, it became clear that minority nursery teaching also entailed certain obligations – on certain decisions it would have had to seek the consensus of the minority self-government – the local government decided to no longer regard the nursery teaching in the nursery school as minority teaching. In a state founded on the rule of law, it is not admissible to ”pick and choose” the exercise of rights and fulfilments of obligations. If the maintainer of the institution had seriously thought that no minority teaching was being carried out in the nursery school then it should have retroactively paid back the public money it had taken without legal cause for a task not carried out.

As a consequence of the local government’s series of unlawful actions outlined above, the merged primary education institution no longer fitted the definition of a minority establishment. Thus the local government no longer saw the need to seek the agreement of the minority self-government regarding the appointment of the head. In our view this also constituted a breach of the law, given that it was as the result of a series of unlawful decisions that the local government managed to avoid soliciting the consensus of the minority self-government.

Drawing attention to the breaches of the law, we put forward the proposal to the head of the competent public administration office that acting within its powers of legality audit, it make a legality opinion in order to annul the local government’s resolutions concerning the merging of the two institutions, the changes to the foundation deed and the appointment of a new head.

The head of the public administration office, however, rejected our proposal. Thus we turned to the Minister of the Interior as the head of the department providing professional guidance concerning investigation of the legality of local governments, as well as investigation of public administration offices.

In the view of the Ministry of the Interior, the merging of the two institutes and the changes to the foundation deed carried out without consensus were indeed unlawful. In the course of appointing a new head, however, the right to agreement could not have been exercised since – though brought about as a consequence of unlawful actions – the primary education institute no longer classified as a minority institute. The Ministry of the Interior thus agreed that certain decisions had violated the law, but did not consider it warranted for the decisions to be rescinded in view of the fact that decisions brought by a body one and a half years ago were in question. The Ministry considered it necessary that the head of the public administration office, in the interests of avoiding further breaches of the law, draw to the attention of the representative body the need to abide by the relevant financial and procedural rules. The Minister of the Interior considered it regrettable, that the right to minority education had been infringed in the given settlement, but held that the available means of legality audit would not ensure sufficient action to prevent similar abuses in the future.

Whilst we are unable to fully support the opinion of the Minister of the Interior, we consider it important looking to the future that national minority nursery teaching be ensured in the given settlement. For this reason we continued discussions with the local government and the minority self-government. An agreement was reached that, in accordance with section 46 of the Minorities Act and section 120 (4) of the Public Education Act, the two bodies would again recognise the demands for minority nursery teaching and education, and that they would organise national minority nursery teaching, thereby satisfying the initiative of the parents (and complying with section 43 (4) of the Minorities Act).

In 2004, dispute between local governments and minority self-governments as to whom the right to agreement accrues in particular cases emerged as a new type of complaint.

In the course of appointing the head of a public education institution offering national minority education, the local government, alluding to section 102 (11) of the Public Education Act, solicited the consensus of both the metropolitan minority self-government and of the national minority self- government. When the two minority self-governments were unable to come to an agreement (i.e. they supported different applicants) the metropolitan government turned to us and asked for our standpoint.

We informed the metropolitan municipal government that according to section 102 (11) of the Public Education Act the right to consensus applies to the local minority self-government, and that it is only necessary to seek the agreement of the national minority self-government in the case of an establishment undertaking area or country-wide tasks. There can not arise, therefore, a situation in which it is necessary to solicit the agreement of both minority self-governments.

In the case of a different minority a similar problem arose. The metropolitan government was unable to decide whether or not the given educational institute was discharging country-wide tasks, and thus sought the opinion of both the national minority self-government and the minority self-government of the capital. In this instance too, both minority self-governments supported different candidates.

The definition of a country-wide task is determined by section 121 (1) 27 of the Public Education Act, according to which: ”An educational establishment discharges a country-wide task if at least 51% of those making use of its services – and not including the seat of the establishment – is made up of those living in a least five different counties (or the capital), on condition that there are at least three public education institutions discharging the given task and providing the given service in the country (for example if it discharges national and ethnic minority tasks, if it operates as an institute with a religious or ideological commitment, or undertakes education of disabled children); and further in the application of section 81 (10) and (12) of the same law, even if only one institution discharges the given task within the country;”

The concept of an area task is given by section 102 (1) 45 of the Public Education Act: ”The educational establishment discharges an area task if taking the average figures for five years – and not including the seat of the establishment – of those making use of its services at least 51% come from a total of more than two counties, or if made use of by those living outside the boundaries of the capital.”

In the course of our investigation, it came to light that, according to the school’s foundation deed, the maintainer’s aim was directed towards fulfilling a country-wide task, whilst on the basis of pupil data the establishment did not meet the definition of an educational institute discharging a country-wide task.

In connection with the complaint the need to amend the concept of a ”country-wide task” emerged. In our view, should a minority community have only one institute providing teaching at a secondary level, then the range of tasks of that establishment should not be narrowed down on the basis of pupil data, since the school – looking to the future, and taking into account there being only one such school – has to ensure the task of national minority education/instruction in a country-wide sphere.

We also considered the concept unsuitable in connection with national minorities since minorities in Hungary do not populate the country’s territory evenly. The majority of minority groups live in one or two counties, and communities of the given minority can not be found in other counties. The criterion of ”at least five different counties” is, therefore, unrealistic in the instance of most of the minorities.

On the basis of the above, we turned to the National Minority Committee (hereinafter: NMC), the national expert body, which prepares decisions, provides opinions and makes proposals on minority public education. We asked them to inform us of their opinion: of whether they regard it necessary to change the concept of a country-wide task, and if so, what amendment they would consider appropriate.

The NMC discussed the question and, on the basis of the argumentation drawn up by us, addressed the Department of Education with an amendment proposal.

2.2. New channels for conflict resolution

With the amendment to the Public Education Act in September 2003, a new legal institution was set up – partly on our initiative - for instances of non-agreement between municipal and minority self-governments in matters belonging to those spheres of authority shared between the two bodies.

On the so called nine-member committee, apart from the ”parties concerned” (the municipal government and the minority self-government), experts listed on a national list of experts and delegated by the NMC also participate. The body reaches a decision by a simple majority, which can replace consensus, i.e. it represents the main decision. (Public Education Act, section 102 (13))

The need for a body to be formed in cases of non-agreement arises when the working of the local public education system is jeopardised because the local government and the minority self-government are unable to reach a decision on questions falling within their shared sphere of authorities. The failure to reach a decision would jeopardise and infringe the running of educational institutions discharging national and ethnic minority tasks, and thereby also infringe the rights of pupils.

We received several requests for information in connection with the operation of the nine-member committee. One minority self-government president raised the objection that it had not been clarified

· whether the committee reaches its decision in the framework of a closed or an open session,

· who acts as chairman, and who takes the minutes,

· how the session is run, and in what way opposing points of view are put forward.

In our reply we drew the attention of the complainant to the text of the law, according to which:

”The committee itself determines its manner of operation.”

The given nine members namely always settle the rules of detail concerning their own operation.

Some complainants who were concerned about the institution’s ability to function and its adherence to legality, requested that we take part in its work, or ensure its legality by acting as external observers.

In reply we informed the complainant that we are not able to take part in the work of the committee and nor would we be able to influence its procedures as external observers. We requested, however, that the complainant inform us should any contravention of the law be detected, in which case we would naturally take the necessary measures.

In another of our cases, a minority self-government made the complaint that only the municipal government had been informed by the NMC of the names and contact details of the three designated experts; and that the three experts had come to an agreement privately without involving the minority self-government.

In order to clarify the complaint we turned to the chair of the NMC and asked to be informed on whether or not the NMC has determined in its rules of procedure:

· the means of selecting experts to be sent to the nine-member committee,

· the means of making contact (who has to be contacted for the committee to assemble: the municipal government, the minority self-government, or both),

· the possibility of talks taking place beyond the work of the committee.

The chair of the NMC informed us in reply that the following resolutions had been passed at our request:

1. At the request of the municipal government, as the body seeking consensus, or at the request of the maintainer of another institution, the competent member of the NMC (the representative of the minority concerned) shall, based on the register of experts, make a recommendation of three independent experts.

2. The delegation of experts takes place based on the decision of the NMC in the form of a resolution.

3. The municipal government or the maintainer of the institution sends the question on which agreement is required to the chair of the NMC or to the address of the National and Ethnic Education Head Section of the Ministry of Education. The question of the delegation of the experts is put on the agenda at the next sitting of the NMC.

4. The NMC informs the maintainer of the institution of its resolution, with the enjoinment of informing the minority self-government of this information.

We accepted the reply of the NMC, since in our opinion the resolutions determined the means of selecting experts and of establishing contact in a satisfactory way.

In one complaint the question of incompatibility also arose. The party requesting measures to be taken by the nine-member committee raised the objection that one of the members of the committee delegated by the NMC was biased in the case since they were on friendly relations with one of the nominees applying for the post of head.

In the case at hand the charge of bias could be refuted. Yet as this question has yet to be regulated we requested that the President of the NMC settle the question of incompatibility for the future (in the form of a resolution or in their rules of procedure). We asked that a rule be created for the exclusion of an expert or competent NMC member from a given case should the unbiased judgement of the case not be likely. The answer of the NMC is not yet known at the time of this Report being written.

2.3. Complaints on discriminative behaviour of teaching professionals

A significant proportion of educational complaints are made up of those lodging a complaint against the discriminative behaviour of teaching professionals. From among the types of complaints received objections are raised that Gypsy children are not taken on school trips, that they are not allowed to be present in school photographs, that they are left out of present-giving, and that their applications for study streams are rejected. We also receive complaints in which the grievance is lodged that teaching professionals have made comments of a humiliating nature to the child in question, or physically maltreated the child.

In such cases we always carry out an investigation on the spot, as well asking for the submission of relevant documents and studying these documents. We speak personally with the head of the school and with the teachers. Contact is made with the child welfare services and with a representative of the Roma minority self-government if there is one operating in the settlement. We gather information as to whether there have been complaints of discrimination in the past, and if so, what action was taken in order to redress these problems. We enquire whether the school has a policy of equal opportunities and whether they are aware of and claim so-called integration normative grants, and use integration preparation. An assessment is also made of whether it would be useful to organise an anti-discrimination training for the teaching staff. In addition the family of the complainant receives a visit from us. Should it prove necessary, we carry out consultations with the participation of all parties concerned.

It is difficult to prove whether humiliating comments referring to a child’s background were in fact made or not. Our experience is that teaching professionals always deny this ”charge”. The situation can not be reconstructed after the event; and we are only allowed to conduct interviews with children in the presence of a teacher. Two problems arise in connection with this: firstly, objective expression of opinion can not be expected in the presence of a teacher; secondly, in view of the interests of the children, a situation can not be created in which pupils are forced to express an opinion about a teacher who will continue to teach them in the future. Due to contradictory claims it is not possible to establish the fact of or absence of discrimination.

Being unable to prove that discrimination has taken place, we approach the head with the request to devote particular attention to ensuring equal treatment within the school and to take all possible action against the occurrence of discrimination. We habitually offer our assistance in organising anti-discrimination trainings.

In instances of Roma children being left out of school programmes, schools most frequently make reference to class money not having been paid. Should the given school have a fund, we address the head, and ask that support be given to pupils unable to participate in school programmes due to financial circumstances.

There have also been cases of pupils not having been left out of certain programmes as a consequence of discrimination but due to a lack of communication and maintenance of relations. In these cases we draw the school’s attention to the importance of giving appropriate information, and the parents’ attention to the importance of establishing regular communication. Where required, we also attempt to assist cooperation between school and parents by calling in the minority self-government.

Where an application for a particular study stream or school has been rejected we always investigate the explanation given by the school. Most frequently, reference is made to applications being submitted beyond the given deadlines or – in the case of students in higher classes – to lack of appropriate qualifications.

If the school divides students into ability-based sets, we examine the precise means of determining the members of the sets, and check whether there is a possibility to move between classes, and whether or not the system leads to discrimination against ethnic or national minorities.

This year we also received a complaint concerning physical abuse. A teacher hit a minor entrusted to his care twice on the face. The child’s parents interpreted this as an expression of prejudice and discrimination regarding the child’s Roma origins.

We informed the complainant about the possibility of criminal proceedings, and requested that the head begin disciplinary proceedings against the teacher concerned. The court placed the teacher on one year’s probation for minor physical damage. The disciplinary committee lengthened the time the teacher must wait before progressing on the promotion scale by one year. The school’s head justified the level of the punishment (which is not the most severe, though nor is it of the lightest degree) on the grounds that such a case had never arisen before during the teacher’s many years work at the school, and that the decision was made in line with the court’s judgement, which inflicted the lightest punishment on the teacher.

2.4. The concept of segregation and a survey of its occurrences

On May 19^th 2004 the Educational and Scientific Committee of the Hungarian Parliament discussed the 2003 Parliamentary Commissioner’s report on our activities. In the course of this, the question arose of segregation of Roma children in schools. Due to the complexity of the issue, we submitted the proposal that the Committee discuss the matter of segregation in schools in the framework of a special point on the agenda with the aim that the Committee be able to present its recommendations on this matter before the Parliament. The Committee accepted our proposal.

The study discusses the legal and social definition of segregation, and sets forth varying types of educational segregation. It also touches upon attitudes on segregation encountered during our investigations on the part of those involved in education. We set forth in detail aspects of the boundary between segregation and autonomy. We also show ways of establishing unlawful segregation and its legal consequences, as well as the endeavours of the Ombudsman, the Government and the Parliament in the interests of its elimination.

In accord with our original intention, we passed our study entitled ”Questions of Segregation in Education” to the Committee; it had not yet been discussed, however, at the time of this Report being written.

3. Introduction to our cases on higher education

3.1. The situation of teacher training for national minorities and the relationship we have developed with the Ministry of Education

We regard the Ministry of Education as a key partner since it is public education, or higher education (alongside families and small communities) that is able to achieve most in terms of preserving the unique cultures and languages of the national and ethnic minorities. Whilst the Ministry has to find a balance between the interests of several branches of politics and groups, and between the expectations of legal codification and those of the teaching profession, we can nevertheless say that our relationship with the Ministry is essentially good. Any occasional debates between us (on occasion arising from inappropriate conduct of affairs) have resulted in acceptable consensus.

It is unquestionable that of the various ministries it is the Department of Education that we turn to most often, and this in turn is the governmental body to request most frequently our opinion on draft laws.[41]

As an example of our working together we can mention the cooperation which came into being on the regulation of teacher training for national minorities. Several exchanges of letters took place in connection with the Government Decree on Certain Rules for the Introduction of a Multi-Cycle, Linear Higher Education Structure which classified the main degree subject of National Minority Pedagogy as a subject branch, thereby directly violating minority interests.

The matter was accorded particular topicality since according to the notification of the German National Self-Government of Hungary national minority self-governments were not able to exercise their right to opinion as the Ministry of Education did not send them a copy of the abovementioned draft law.

We indicated to the Ministry that this omission infringes minority rights, and also contravenes the Codification Act. For section 38 (1) of the Minorities Act states that: ”National self-governments may express their opinion on draft laws significantly affecting the minority they represent”. We drew the same conclusion, namely that the right to give an opinion did indeed accrue to the self-governments mentioned, and that the ministry responsible for drafting the law, i.e. the Ministry of Education, had been under the obligation to solicit their opinion on the basis of section 20 of the XI Act of 1987 on Codification, which states that: ”Law enforcement bodies, community groups and interest representation bodies must be involved in the drafting of laws affecting the rights or social relations that they represent and defend.”

In spite of being aware of the consistent practice of the Constitutional Court, according to which it is not a condition of the public law validity of legislation that the opinion of community interest representation groups be obtained, and that the neglect of the provisions of the Codification Act only then results in the act being established as unconstitutional if the given act also contravenes a concrete provision of the Constitution, our opinion was that there was a need to rethink certain rules of the legislation, Government Decree 252/2004. (VII.30), applying to this question.

Our argumentation – corresponding to the consistent practice of the Parliamentary Commissioner - contained the following points:

The legislator set up the system of minority self-governments with the aim in mind that cultural autonomy of minorities be achieved through their operation. The provisions of the Minorities Act, defining the set of tasks and competences of minority self-governments, however, barely vest minority self-governments with the licence to come to independent decisions, and in practice their opportunities regarding establishment or maintenance of institutions only exist in principle, thus in the creation of cultural autonomy their most important licence is the ”right to joint decision-making”.[42] We emphasised that this minimal level of autonomy must by all means be ensured, since without this the most substantial of the minority rights would be lost, which can not have been the wish of the legislator. (Also, the standpoint of the Constitutional Court regarding invalidity of laws can not provide from the outset exemption from clear contraventions of the rules of procedure.)

The aforementioned Government Decree not only contravened procedural rules for codification when it was created, but also in its content caused, or could cause serious damage to the interests of national and ethnic minorities. We explained that with nursery teacher training or teacher training for national minorities classified only as a subject branch, it can be expected that many fewer people will apply than if it had been possible from the first to take this as a main degree subject. In connection with this, we drew attention to the fact that according to section 46 (2) of the Minorities Act: ”It is the duty of the state to train mother tongue teachers to provide education of the mother tongue and in the mother tongue to minorities”, and if the state only satisfies this task partially, then the preservation of minority identity could also be jeopardised since, and it can not be stressed enough, schooling and education play an increasingly important role in this regard.

Moreover, since students take the subject branch in a later period of their studies, a disadvantage could also be pointed out in terms of how effective bilingual instruction is. Over and above this, according to the current rules, the degree of national minority teachers is equivalent to a ”C” level language exam, and if a reduced number of language lessons were to follow from the lower proportion of credit points for the subject branch, then this level – as seems likely - would no longer be ensured.

We drew the attention of the Ministry to the fact that the classification of subject branch would constitute a financing disadvantage too, which would also have an effect on work experience, an indispensable part of practical training, and could lead to the closure of ”small” departments, which are in a difficult situation as it is.

We also put forward the argument that European cooperation and global competition raises (among other questions) the issue of integration of migrant students, a question inseparable from that of bilingualism. This provides another reason why we should seek to strengthen national minority departments, national minority instruction programmes and degree subjects, since it is precisely these departments that have several decades of experience and international connections in this area. For these reason, the cutting back of such practical and academic workshops should not be allowed, a process which has demonstrably already been planned out claiming economic reasons. On the contrary, these departments should be the recipients of particular support, since they could be assigned a significant role in intercultural training.

[In Hungary a national minority nursery teacher receives a diploma with the help of which it is possible to work in a Hungarian language nursery (monolingual), a Hungarian language and minority language nursery (bilingual), and a nursery for just minority languages (German, Croatian, Serbian, Romanian, Slovakian etc.) The same rules apply to working in a nursery group. If, therefore, a national minority teacher is placed in a Hungarian language nursery where there are, for example, Turkish, Iraqi, Afghan, Vietnamese, Chinese, or Armenian children, then it is likely that this teacher will be the one best prepared to solve the problems arising in such a case, since methodical questions of bilingualism also form part of the syllabus for national minority training.]

The Ministry, in terms of the right to opinion of minority self-governments, referred to ”long-windedness” (”significantly affecting minorities”) arising from the legislative formulation, and regarding contravention of minority interests, referred to the EU education structure and modernisation requirements set down by the so-called ”Bologna process”. In other words, the Ministry denied the possible drawbacks without going into specifics.

It was, however, possible to settle every contested point at the expert level discussion. The delegation from the Ministry of Education made the promise that in the future all draft bills would be sent to national self-governments within an appropriate fixed deadline, and that disadvantages arising from subject branch status would be compensated for in the Higher Education Act (In the Bill five separate rules can be found for nationality minority teacher training).

3.2. Our experiences regarding the teaching of Romology, or else whether Roma pupils need to be educated differently

Every year we receive several complaints about inaccurate information contained in text-books and study-aids, or on occasion about attitudes expressly stirring up prejudices.

We did not have the possibility to take significant measures in the majority of cases – in view of the freedom of research and academic life, enshrined in the Constitution as elsewhere – but from the point of view of human rights this is a problem on which we must by all means take a standpoint. Misconstrued ”missionary” Romology or Roma pedagogy as a subsection of Romology can, whether they like it or not, give apparent academic legitimacy to segregation and adverse discrimination, with which we can not agree.

Our first proposition is that Romology as an interdisciplinary science, which since the 90’s has occupied itself with the systemisation of (full) knowledge collected about the Roma in terms of language, culture, education, demographics, with emphasis, or over-emphasis, on the otherness of the Roma and their exoticism, has whether it likes it or not led to the blurring of Roma culture and Roma issues in common discourse.

If problems stem from the ethnic culture, then it is only possible to treat these problems using methods suitable to the other culture. The aim of university and college Romology teaching unfortunately is that familiarity with Roma culture provide professionals with a key to dealing with Roma, thereby enabling them to carry out their future work more effectively. The problem with this is that solutions given to the ethnic culture can also easily be turned into a segregated manner of treatment.

To corroborate the tendentious, missionary nature of Romology teaching, we would like to present some examples, which can also be also found on the internet:

”The aim of this course is to recognise and understand academic questions raised by Romology, to train experts able to understand and interpret the political, legal, linguistic, cultural, educational, demographic, and employment situation of the Roma. We consider it important that as many graduates as possible (teachers, cultural organisers, social workers, communication professionals) should leave this university in the possession of up-to-date and academically grounded knowledge of Hungarian Gipsy groups”. (University department)

”The aim of this department is to familiarise our students with the Roma lifestyle, language and literature, as well as the application of this knowledge in teaching practice. All students of the college partake in Romology instruction and those interested may also acquire the fundamentals of Romology studies within the framework of pedagogical further training”. (Higher education college Romology department)

”The Folk Culture and Romology department offers specialist instruction for prospective teachers interested in the teaching of various children of ethnic origin, in particular those of Gipsy origin”. (University department)

”Ten percent of the police force in the county has completed a course on Romology instruction, by means of which they have become acquainted with the lifestyle and language of the Roma, as well as confronting their prejudices. The chief of police reported that the way of thinking of those who had completed the course had changed”. (News item from a daily paper)

Our second proposition is that the knowledge and information relayed by Romology is not always adequately backed up and academically based.

Firstly, it can not be denied that knowledge related to Gypsies is gained predominantly through writings filtered through the particular point of view of the majority, i.e. of non-Gypsies, and to be treated with reservations.

The second problem is also backed up by the research of Tamás Terestyényi:[43] more than two-thirds of the publications examined by him were ”branded by severe weaknesses of professionalism and content”. He also observed that in other places ”study-material of an acceptable standard was not produced in texts related to pedagogy”. The texts on Gypsies in secondary school level History and Social Studies text-books, for example, do very little in the interests of familiarising pupils with Roma history and culture.

The survey not only ascertained that Roma were mentioned in a low proportion of books – not even a quarter of the 74 books – but also that the length of those portions of text concerning Roma was very slight. Among 19 books addressing Roma history, for example, only three brought up the topic of the Roma holocaust. ”These text books do little to dismiss popular prejudices, in fact with unguarded formulations, the offering up of associations and conclusions of adverse content, and unfavourable intimations, they strengthen rather than weaken prejudicial thinking” – as can be read in the summary of his research.

As a part of Romology, numerous courses connected to Roma pedagogy are run in the further education system and the pedagogical further training system. We reject this most decidedly as these are not backed up from a pedagogical viewpoint, and are unacceptable from a human rights angle.

Roma pedagogy namely considers that children’s problems in school can be fundamentally understood in terms of ethno-cultural particularities. And what are these particularities? They claim that Gypsy children are unmotivated, that they lack the capability of abstraction, though they have more advanced music and artistic abilities…that they have a different concept of time…that they mature earlier biologically …that they come from an environment lacking in stimuli… that they have under-developed self-control …that they view the school as their enemy…that they have no sense of obligations, they do everything just when they feel like it…and that Gypsy parents bring up their children badly.

Our third proposition is that, in our opinion, Roma pedagogy removes Gypsy children from the references of pedagogy as a whole, that it grants legitimacy to their being separated off, even though that which is true of Gypsy instruction is true of children growing up in disadvantaged circumstances, and in a wider sense, of all children. Only the bilingualism of Gypsy children may be regarded as an ethno-cultural particularity.

The pedagogical collection of texts, used in colleges, entitled ”Basic Theoretical and Practical Roma Pedagogy” illustrated all of our propositions above: facts are recorded from the personal viewpoint of non-Roma, the book infers that problems of Gypsy children at school can be adduced to the otherness of their culture, it corroborates the conception of separation, in terms of pedagogical methodology it does not mention methods only true of Roma, and from the point of view of content and professionalism it can be classified as pseudo-academic in several places.

In the course of our investigation we ascertained the following:

The editors of the text collection had intended the book to fill a gap; their aim was that up-to-date and accessible theoretical knowledge be extended to teachers, or to those participating in further training, in place of individual Roma pedagogical knowledge, only familiar from the experiences handed down by older teachers.

The editors, through selected extracts from studies, draw attention to special pedagogical problems that can be concluded from historical, ethnographical, sociological and statistical information about Roma, and provide suggestions of how these problems can be solved.

The pedagogical methods given, expressed in the form of conclusions, do not, however, record specific methods, but rather the forms of behaviour, motivation and organisation of work generally expected of a good teacher. Every pedagogical methodology book considers that group, pair and individual teaching, motivating pupils to active participation and aiming at the cooperation of pupils with one another, is ”good pedagogy” as opposed to frontal teaching.

In view of this the question can rightly be raised of whether there is such a thing as Roma pedagogy. And if so, is there also Serbian pedagogy, Ukrainian pedagogy etc? Is it possible to indicate certain ethnic particularities to which teachers should pay attention to?

In our opinion, every general conclusion made on the basis of belonging or not belonging to a certain group of people violates the individual’s right to human dignity, due to the summary, over simplified, stereotypical nature of the conclusion, even should a positive attribute (for example, good sense of rhythm) be ascribed to the given person. This is particularly true if the general image is negative, and attributes a trait rejected by all of society to a particular person purely on the basis of belonging to a particular group of society.

Destructive tendencies, low achievement levels (p.19), intellectual backwardness (p.119), the irresponsibility, incapacity and lack of foresight of Gypsy families (p. 120), propensity for deviancy and crime (pp. 163-5) are all questions that should be examined separately in the case of a particular person. It is incorrect, even absurd, to present these statements as truths. Such claims also profoundly violate the dignity of the Roma community as a whole.

Two studies within the book are particularly damaging (also to be highlighted because of their pseudo-academic nature). One of them, for example, explains the reason for separated (segregated) Gypsy classes (unlawful according to the Education Act) as due partly to intellectual backwardness affecting almost 50% of the local Roma children, and partly to their proportional strength in numbers. The other study reached an unavoidably false conclusion by not measuring Roma criminality in relation to social groups living under the same circumstances, but by taking Hungarian society as a whole as the point of reference.

The sections of the book concerning the history, social situation, linguistic difficulties, housing conditions of the Roma and prejudices faced by them were on the whole acceptable, but we did not intervene even as regards the criticised parts of the book, since the institute used the collection neither as a text-book, nor as a study-aid.

Nevertheless, interested members of the teaching profession can gain access to the book…

3.3. Discrimination regarding student loan claims

The country-wide organisation of one national minority organisation turned to us with the complaint that the current rules for taking out of student loans discriminate against the national minorities of Hungary.

On the basis of Government Decree 119/2001.(VI.30.) (hereinafter: Decree) on the Student Loan System and the Student Loan Centre, as well as the provisions of the Business Regulations of the Student Loan Centre Ltd., established by the Ministry of Education, only those students of Hungarian citizenship studying in higher education institutions on Hungarian territory are entitled to claim a student loan. For according to the Decree the conditions for claiming a loan are the following:

”Section 3 (1) a Hungarian citizen is entitled to the student loan without individual credit and risk assessment who

a) is participating in higher education accredited vocational training as part of the education system, or undergraduate school or college level training run by a higher education institution, or in supplementary undergraduate training – state-financed or non-subsidised – as an enrolled undergraduate or student in forms of education as laid down by the Higher Education Act.”

In section 2 a) of the Decree, among the explanatory provisions, the concept of a higher education establishment is determined as:

”An institute listed in the first appendix of Act LXXX of 1993 on Higher Education and accredited vocational colleges offering higher education vocational training as part of the education system.”

The force of the Higher Education Act extends to higher education institutes operating within the territory of the Hungarian Republic (section 1 a) of the Higher Education Act). The Act’s supplement no. 1 also only lists higher education establishments within the Hungarian Republic.

The minority community brought the complaint that Hungarian citizens studying abroad were not entitled to a student loan. The question of discrimination also arose since the relevant laws disadvantage Hungarian national minority citizens studying abroad.

The obligation towards equal treatment in the educational sphere is, however, not only valid for those students studying at universities in Hungary. The 1964 UN Convention against Discrimination in Education in its 11^th session, section 3 point c), undertook:

”Not to allow any differences of treatment by the public authorities between nationals, except on the basis of merit or need, in the matter of school fees and the grant of scholarships or other forms of assistance to pupils and necessary permits and facilities for the pursuit of studies in foreign countries.”

Act XXXIV of 1999 on the Promulgation of the Framework Convention of the Council of Europe on the Protection of National Minorities, 1 February 1995, Strasbourg posits that:

”The Parties undertake to promote equal opportunities for access to education at all levels for persons belonging to national minorities.”

In order to clarify the issue we asked for guidance from the Education Department.

The Ministry informed us that the Government had in the meantime brought a resolution on promoting student mobility in the interests of realising the European Higher Education Area.

Point 2 of Government Resolution 2082/2004 (IV.15.) states that:

”The Government…
2. calls upon the ministers concerned to examine and, as a function of this, to draw up the conditions for claiming student loans for higher education studies abroad, and to submit proposals for the necessary legislation.”

A working group was set up with the participation of staff from the Ministry of Education, the Ministry of Finance and the Student Loan Centre for the implementation of the Government Resolution. In the opinion of the working group the student loan claims sphere could be extended, however, several problems in need of answer arose in connection with this:

- of how it would be possible to ensure the recovery of the loan should the claimant of the student loan remain abroad and not pay instalments?

- of how it would be possible to prove student status abroad (would there be a need for an itemised listing of foreign educational establishments to be taken into consideration);

- extending the availability of loans would lead to changes to the loan sum awarded.

At the time of writing our report, the Ministry of Finance was working on a solution to these problems. According to information received from the Ministry of Education, since there is a need to bring the draft decree into line with the Bill, the decree can be expected to come into force by the commencement of the 2005/2006 academic year.

Chapter IV
Minority rights in the electronic media

1. Introduction to rules on competences enabling ombudsman investigations to be conducted

Under Article 32/B of the Constitution and section 1 of the Ombudsman Act, it is the duty of the Ombudsman to investigate or have investigated all irregularities related to constitutional rights that come to his attention, and to initiate general or individual measures in the interests of redressing these.

Section 29 (1) and (2) of the LIX Act of 1993 on the Parliamentary Commissioner for Civil Rights list – in establishing positive and negative spheres of authority – those authorities, or state bodies, over whom the Parliamentary Commissioner may conduct an enquiry.

Among those authorities which may be investigated by the Ombudsman, the so-called organs of the press, discharging ”public services tasks” do not yet feature, however there is no room for doubt that – quite independently of their legal status – we are speaking of economic corporations offering public services.

Among those bodies offering public services a distinction can be made according to the extent to which in the course of their activities they expressly fulfil state tasks, tasks funded in some form by the state, or exclusively (commercial) tasks with a business aim.

A distinction must also be made according to what extent the various media offering public services are in a monopoly situation – that is, does the population have a reasonable chance of making a choice as far as utilising the various services is concerned.

On the basis of the above, therefore, we carried out an investigation – ex officio – of the following forms of media appearing either in electronic or written format.

electronic broadcasters discharging public services tasks (Hungarian Teleision, Hungarian Radio);

electronic broadcasters that obtain state funding due to undertaking to promote the realisation of national and ethnic rights;[44]

finally we also examined – at least as far as the principles of their legal regulations and observation is concerned – commercial stations run on a profit basis, that own, however, an unequivocal monopoly in various regions of the country in respect of either electronic broadcasting or programme service.[45]

2. Introduction to the objectives and conception of our investigation

Under section 18 a) of the Minorities Act: ”Public service television and radio stations - as provided for in a separate law - will ensure that national and ethnic minority programmes are produced and broadcast on a regular basis”, whilst section 18 (2) of the Minorities Act also makes it the duty of the state to promote the reception of radio and television programmes from the kin state in territories inhabited by minorities.

Section 2 (1) of the Act II of 1986 on the Press (Press Act) also sets out an unique civic right, declaring that, ”Within the Hungarian Republic every person has the right to receive information in questions concerning their close environment, homeland and the world”. According to the Press Act it is the task of the press to offer reliable, accurate and swift information in line with other newscast instruments.

The Framework Convention of the Council of Europe on the Protection of National Minorities and the Charter for Regional and Minority Languages were ratified by Hungary too in 1999, thereby undertaking to take suitable measures in order that media providing public services include programmes in minority languages in their schedules. Hungary further undertook to create and maintain newspapers in minority mother tongues and to cover the additional costs of mass communications instruments arising from use of reports not in Hungarian, in addition to funding the training of minority journalists.

In compliance with the abovementioned obligations, Act I of 1996 on Radio and Television (Media Act) also records that it is the obligation of public service broadcasters to promote the fostering of the cultures and mother tongues of national and ethnic minorities in Hungary, as well the provision of detailed information in their native languages.

Section 2 (1) g) of the CXXVII Act of 1996 on the National News Agency lists the provision of regular and factual information on the lives of home national and ethnic minorities among the public service tasks of the national news agency.

From the point of view of the investigation we could not disregard the right to freedom of expression enshrined in the Constitution, nor to the constitutional provision according to which, ”In the Republic of Hungary everyone has the civic right of access to information of public interest, and also the freedom to disseminate such information”.

The concept of information of public interest is given by Act LXIII of 1992 on the Protection of Personal Data and the Publicity of Data of Public Interest. Without engaging in a detailed analysis of the legal regulations, it is sufficient for us to note as a fact that electronic media is one of the most important tools for access to data of public interest or dissemination of such data.[46]

Based on the above, we divided media tasks related to national and ethnic minorities into two fundamental sections, and thus in the course of our investigation paid particular attention to the questions below.

Since access to data and information of public interest is a general constitutional right accruing to all, and the exercise of which is not dependent on knowledge of Hungarian, the question can be put of whether the function of electronic media to provide information is realised in the case of the legally recognised minority communities
and those belonging to these communities.

The state undertakes express commitments in the Constitution and the Minorities Act, directed at enforcing these commitments, to counteract the assimilation of ethnic minorities – essentially, to ensure the necessary conditions to ward against loss of language and identity. The question arises, of whether in this sphere – for example, the fostering of culture and tradition, as well as ensuring the use of mother tongue – public service media complies with the demands of the minorities, and general expectations resting on the electronic media.

We are aware that the media has – beyond the points denoted above – a unique opinion-forming role. The media, whether it be with the broadcasting of news programmes or with programmes geared towards entertainment, is particularly suited to exerting a decisive influence on public opinion, to highlighting certain social phenomena, to strengthening or dispersing stereotypes associated with certain groups or phenomena. In short, it can actively mould public attitudes. For this reason we consider warranted those statements that the media is to be considered a separate (”fourth”, ”fifth” etc.) branch of power, though not necessarily party or policy neutral, nor independent of politics.

In the framework of our current investigation, however, we deliberately did not set out with the intention of analysing this opinion-forming function of the media. (In fact we emphatically did not discuss this aspect in the official statement prepared on our findings.) This is in particular view of the fact that we spoke at relative length about this topic while discussing the issue of ”hate speech”[47] in the Parliamentary Commissioner’s reports of recent years.

3. The reception of certain of our proposals (recommendations and initiatives)

In this section we shall speak about the reception of our official report bearing the title of ”The Exercise of National and Ethnic Rights in the Media”, or rather about how certain recipients – the central authorities or public media whom we approached with initiatives or legislative proposals – reacted to our findings.

First and foremost, we must relate that in compliance with our proposal, the Parliamentary Standing Committee for Human Rights, Minority and Religious Affairs on November 3^rd 2004 – in the framework of a separate item on the agenda – discussed and unanimously accepted the report, in parallel with which they also brought a resolution of the essence that the Committee would support and promote with its own special means the practical realisation of our recommendations and proposals.

As the first of our measures we composed a general set of proposals for the part of the Government, which had as their aim cooperation with national minority self-governments and cultural and artistic bodies recognised by the minorities. Within this sphere we proposed, for example, that workshops (editorial offices, columns) designated for the production of minority programmes be given greater organisation and budgetary control than at present, and independence such as to ensure freedom of press and freedom of speech in the minority media, political impartiality and plurality in the interests that the minority media not become the exclusive mouth-piece of one political party or one organisation.

In response to our proposal, from the part of the Government we received a reply from the Minister of the Chancellery, who whilst not disputing the soundness and legitimacy of our proposals, expressed the opinion that ”The drawing up of a conception for the review of legal matter regulating minority media…can not be separated from the question of a comprehensive revision of Act I of 1996 on Radio and Television Broadcasting”.

Hereby the Government to all intents and purposes rejected our proposal on minority media, also acknowledging that, under the current balance of power and lack of political consensus, there is in effect no chance of an amendment to the Media Act, given the presence of the ”two-thirds law”.

We were unable to accept this response, since whilst arguments can be brought for the need for comprehensive revision of the Media Act, the question of minority media could represent a sphere, whose regulation could be achieved with two-thirds parliamentary support. The main reason for this is that these regulations need to be created in order to comply with European requirements too. We are not thinking here primarily of our obligations stemming from membership of the EU, but also of the other international obligations undertaken by Hungary.[48]

In addition, we proposed to the Parliament – or rather to the Government responsible for preparing legislation – that by amending the Local Government Act, it be made the concrete duty of local governments to provide assistance regarding mother tongue information for minority citizens ”alongside ensuring that national and ethnic minority rights are exercised”.

Whilst the Local Government Act does in fact currently include this task in the set of tasks to be discharged by local governments, the too general way in which it is expressed means that it is difficult to interpret precisely what must and what can not be required of local governments.

Whilst various regulations directly or indirectly designed to serve the exercising of minority rights for this range of tasks can be ”pasted together”, it would by no means be superfluous for the Local Government Act to designate certain tasks concretely, at least with the character of example. Such a task could be – and we are not only pointing to this in connection with the media investigation – the creation of legislation to comply with Article 61 of the Constitution. Article 61 of the Constitution enshrines the fundamental constitutional right connected with access to data and information of public interest, which under the Data Protection Act everybody must be able to exercise. In our interpretation, this rule should be applied – collating it with the provisions of the Minorities Act and the Equal Treatment Act – so that our compatriots who do not know, or are little familiar with Hungarian, also have access to data and information of public interest. We must note that this has in fact certain traditions, since on the occasion of minority self-government election, for example, various instructions and voting slips, are made available for voters in the minority language as well as in Hungarian.[49]

Our proposal was rejected both by the Minister in charge of the Prime Minister’s Office and by the Minister of the Interior, essentially on the basis of the following arguments:

· it would be a question of a two-thirds law, whose acceptance they do not consider assured;

· in their opinion the stipulation of media related tasks, would potentially infringe local government autonomy;

· if the law were to determine such tasks, the state would have to ensure the necessary resources for their execution (which, the letterers inferred, do not lie at their disposal).

The Minister of the Chancellery remarked, in addition, that our proposal was ”not sufficiently concrete” (not set forth precisely).

We do not accept these replies, and as far as the criticism concerning our findings and proposals are concerned, we only agree to the extent that, in reality there is a need to set these out in more detail and in a more justified form for the members of the Government. In the course of 2005 – following the submission of this Report – we shall satisfy this requirement.

In the final chapter of our media report we proposed that the Minister of National Cultural Heritage attend to the creation of a law which would ensure the preservation (archiving) of minority programmes of public broadcasters (film and sound recordings in raw format) for the coming generation.

An answer arrived to our proposal from the Ministry of Culture, to which the Minister in charge of the Prime Minister’s Office also reacted. In his reply, Mr. Péter Kiss assured us that in 2005, ”It is foreseen that the National Audiovisual Archive will be set up (NAVA), whose task will be not only to record these programmes, but also to adapt them in an appropriate way so as to make them accessible to the public”. We interpreted the reply of the Minister of the Chancellery as the acceptance of our proposals, and in the framework of a later investigation, will review whether or not the establishment of the new establishment has solved the archiving problem.

The Minister of Culture, Dr. István Hiller, informed us – covering essentially the same subject-matter as the Minister of the Chancellery in more detail – that the law concerning the establishment of the NAVA would extend to every individual programme able to serve in the future as an historical document for presenting the history and culture of our country or Hungarian society. In the view of the Ministry, programmes produced by non-Hungarian broadcasters are also to be included in this group. The Minister also pointed out that the great majority of programmes dealing with the lives of national and ethnic minorities also fit into the definition of the ”obligatory audiovisual copy” to be collected by the NAVA, thus the possibility would exist of fulfilling the archiving task that we proposed.

We also approached the Minster of Foreign Affairs, as well as the Minister of Informatics and Communications with a recommendation in the interests that they review our agreements made with our neighbouring countries and the organisation of European states in the sphere of newscast and broadcasting. We set out the outline of the following questions as points to be reviewed:

Does Hungary comply with the requirements laid down in the interests of ensuring ”radio and television broadcasting extending beyond borders”?

In bilateral agreements with certain neighbouring states, is there sufficient emphasis on the mutual guarantee of technical possibilities for radio and television broadcasting?

Do the abovementioned international agreements provide regulations for the broadcasting in member countries of the public service transmissions of the given countries, do they allow for the possibility of their unimpeded and cost-free transmission?

Is there international cooperation for the mutual training (further training) of telecommunications – here thinking primarily of those involved in the media – technical experts and producers (or journalists), and for the exchange of ”guest workers”?

Does the Republic of Hungary really meet the requirements laid out in a) to d), and does it take the necessary measures for them to come into effect.

The Ministry of Foreign Affairs has not replied to our request to date. The Political State Secretary of the Ministry of Informatics and Communications has merely pledged that this Ministry would agree on the necessary action to be taken concerning minority media together with the National Communications Authority and the National Radio and Television Commission, of which they would presently inform us of the result. In this sphere, the only positive fact was that we also received assurance that following the discontinuance of the so called ”eastern FM”, the possibility of broadcasting minority radio programmes would be examined.

Chapter V
Social problems and disadvantage under an ethnic guise?

1. A general review of our cases linked to social security, and the realisation of interests connected to children’s (and parents’) rights

The Parliamentary Commissioner for National and Ethnic Rights, as a so-called ”special commissioner” who can be regarded as a specialist appointed for the defence of minority rights and occupying a unique place in the Hungarian legal system, is nevertheless forced to deal with rights linked to social security declared in Article 70/E of the Constitution and so-called ”children’s rights” likewise of distinguished importance, though the exposure of abuses of these rights, and their remedy do not fundamentally belong to his competency.[50]

In 2004 – as in recent years – more than 10% of complaints received touched upon constitutional rights linked to social security and children’s rights. On social questions we were approached mainly by complainants of Roma origin who are taking care of their children under difficult financial circumstances, having been ousted from the job market. Many of them are struggling with severe health problems. These families are the real losers of the market economy transformation. As a result of the social and economic processes following the regime change their housing conditions have deteriorated and they are currently living in ”severe poverty” and increasing social exclusion. The problems listed in their complaints do not refer to interim crisis situations but to a prolonged and irreversible process of decline.

Social problems, and in general cases stemming from poverty, appear in our investigations under an ”ethnic guise” (too) for the reason that a large number of our clients, or rather complainants belong to the Roma minority.

Complainants make objections to real or imagined wrongs, treatment displayed by authorities (local governments), or decisions not in their favour under the presumption that this treatment may be connected in some way with their identity or ascribed to anti-Gypsy prejudice.

We ca only investigate the procedures conducted by an authority against which a complaint has been made, however, if we also review the original case, i.e. the series of official (local government or authority) procedures, in connection with which the complainant addressed our office.

For a decade now the Parliamentary Commissioner for Minority Rights has interpreted his set of powers as meaning that his main task is to observe adherence to and realisation of minority rights, yet in his role as a parliamentary commissioner he is also bound to deal with any abuse appearing in his field of vision. This signifies a complex approach: we examine every case in its own completeness, and even bring up seemingly insignificant procedural breaches, whilst bearing in mind that our primary task is to establish the presence of or to eliminate ethnic discrimination.

The situation is similar; or rather our methods are similar when investigating complaints concerning children and parents: the aforementioned process of ”ethnicisation” is characteristic of these cases too. Within the scope of investigating minority affiliation and discrimination on this count, an important and self-contained aspect is the defence of specific children’s and parents’ rights, as enshrined partly in the Constitution, and partly in other laws.

The question of adherence to the Child Protection Act – or enforcement of the Act – can, however, also arise in the case of such legal and life circumstances as the ”adoption question”[51]

We would like below to introduce several types of legal case from the experience of the Ombudsman that can be regarded as typical, or as instructive. Beyond providing an exposition of the activities of our office, these cases are suited to illustrate this complex and delicate sphere of problems.

1.1. Difficulties arising from regional inequalities and the decentralised system of social provisions

Complainants tend first and foremost to object to either the activities of their local government representative body or mayor’s office, or hope to receive help from them through our intervention.

Here in Hungary, the system of social provision has become decentralised to a large degree. The overseeing of social and child protection tasks belongs to the competences of local governments. Decentralisation signifies an advantage from the point of view that decisions on the applications of disadvantaged residents can be made based on by-laws, which, within the bounds of the laws, are founded on local conditions and features. In smaller settlements decision-making processes can also be helped by the fact that local government experts hold more information on the lives and requirements of those in need. In practice, however, significant differences, in fact decided inequalities appear between settlements in the overseeing of social and child protection tasks, springing primarily from the varying financial situations of local governments.

In our experience, geographical location of residence has a decisive effect on the employment chances of members of disadvantaged groups, as well as on access to social and child protection services, or the quality of the provisions that may be resorted to. Significant and long-term differences exist between the country’s different regions and settlements in terms of the availability and standard of social services.

The fact too that the majority of children’s rights complaints come from residents of Hungary’s eastern and northern regions, predominantly from disadvantaged settlements, reflects differences in income and social schemes arising from regional inequalities. It is an unique anomaly that social problems are appearing in ever greater numbers in such settlements, yet it is in these settlements that services dealing with the treatment of these problems are in the shortest supply due to poorer economic, infrastructural and employment conditions. It is of severe concern to local governments of small settlements struggling with significant lack of resources that their lack of means prevents them from being able to make an impact on the circumstances of the Roma population, who are living in lasting poverty and ever increasing exclusion. The citizens of these settlements and local governments responsible for public affairs may justifiably feel that they have been abandoned to their problems without being given adequate financial or professional help.

1.2. Housing problems and housing availability complaints

Reviewing complaints received in 2004, it can be established that complainants for the most part raised objections to their unacceptable poor living circumstances, and asked for assistance in solving their housing problems. The social inequality suffered by Roma families, as reflected in their living conditions, is extreme. Complainants live together with many children in several-generation families in mildewed, unhealthy, unheated dwellings, of between 15-20 m² consisting of one room and kitchen, often without water and electricity connections.

Complainants raised the grievance that they still do not have access to local government flats even after several years of waiting. According to the Hungarian Central Statistic Office’s data for 1999, the proportion of tenement flats in Hungary is very low (8%) compared with the European average (33%).[52] The vast majority of tenement flats are currently owned by local governments. In our experience, local governments rarely build or do not build new tenement flats. In the course of our investigation, we were informed mainly by small settlements that they had no housing fund or did not possess vacant local government tenement flats. Typically there are many rightful claimants and few such local government tenement flats to be divided out on a social basis. In spite of this, we managed, as in 2004, to assist in solving the housing problems of some complainants, and as a result of our intervention these families gained access to local government tenement flats. We can not, however, regard this as a real success. The solution is not to be signified by individual decisions of a discretionary nature. There is a need to further extend the stock of tenement flats under public ownership, and to draw up criteria for their allotment, on the basis of which poor Roma families, living off social benefits, could also gain access to local government tenement flats.

Several complainants also noted that they were living in their current accommodation without legal title. In the case of unsettled legal relations, particularly illegal occupancy (squatting), it is almost impossible – in view of by-laws – to claim a local government social flat.[53]

It also constitutes a large burden for Roma families that their income does not cover their housing and living expenses. For many families it is a source of difficulty that they live in fear of being evicted, or having their house or flat put up for auction due to their failure to pay off accumulating utility arrears, long-standing arrears to the OTP (Nationwide Savings Bank) or home loans taken out from another credit bank.

The accumulation of debts coupled with lack of income, is in our experience also connected to the client not receiving sufficient and comprehensible information from the public service provider, and thus not taking measures in time to settle the arrears. Where a relatively low level of arrears is concerned, there have been occasions of the complainant being granted, as a result of our intervention, the allowance of payment by instalments or some other allowance (for example waiving of interest on arrears). As a general rule we included employees of the given settlement’s family support services in the handling of these questions, who offered personal help in communication between public service provider and client.

It is a common phenomenon for a given public service provider to permit repayment of debt by instalments at the petition of a client, but for the disadvantaged family, following the settlement of one or two instalments, to again find themselves behind with payments through lack of income. It is extremely difficult to find a solution to this type of problem since public service providers lose their confidence in clients who habitually relapse into debt, and generally will not offer allowances, which can be awarded on discretion and taking into consideration the individual situation, time and time again. Thus, unfortunately, arrears can build up to the value of several hundreds of thousands, or even millions of forints, which by this stage will be almost impossible to settle from the family’s private income or with the assistance of the social benefits currently able to be claimed.

Under the provisions of Act III of 1993 on Social Administration and Social Services (Social Act) local governments can accord debt management services to certain families to offer help with housing problems. Local governments can provide financial support for the clearing of arrears, granted that those offered support undertake to pay the difference between the arrears and the debt-reduction support as agreed on by the local government, as well as to participate in debt-management counselling. The set of those eligible for this debt-management programme is strictly limited. In addition to the aforementioned requirement of paying off the difference, the scale of the debt-reduction support may not exceed that of 75% of the arrears, and its total may be a maximum of 200, 000 forints. The duration of the debt-management is a maximum of 18 months, which may be extended on one occasion with good cause.[54] The majority of complainants – as a result of the scale of their debts accumulated over many years, and the minimal income of the family – are not eligible for this service. In several settlements – claiming financial reasons – the debt-management service has not been set up despite 90% state support. In its absence, those in arrears may at the most be given some assistance through housing maintenance support and interim benefits, but the low sums awarded and the fact that interim help is tied to one particular occasion mean that more significant arrears can not be redeemed in this way.

Dating from the end of the nineties, the Parliamentary Commissioners have on several occasions drawn the attention of the Government to the need for debt-settlement. We judge it of importance, therefore, that in the past year the Government prepared a draft decree for arrears arising from certain housing-purpose loans.

We consider the realisation of the planned consolidation scheme for the treatment of debts and arrangement of the situation of those families unable to pay off debts important, since it could facilitate the reduction of inequalities, though this too would offer a solution only to certain groups of indebted families. The Government Decree laid down the progressive introduction of the consolidation programme, thus in 2005 only those with capital arrears under 100, 000 forints will be included.

At the time of offering our opinion on the draft government decree, we indicated that in the course of putting the consolidation scheme into practice, it would be expedient to become more familiar with and to analyse the situation of those concerned where required. For it is important to be in possession of information on how many families or households the programme will have an impact on in the years to follow, as well as on how many are currently left out of the programme due to their higher capital arrears. The situation could arise that in the first years of the programme precisely the members of the most disadvantaged groups would be excluded from the consolidation programme. Unfortunately, it is also conceivable that these families will lose their homes during this ”waiting” time. When giving our opinion on the draft decree we suggested that intermediary measures are also needed to prevent families with higher levels of debt from becoming homeless.

[At the time of preparing this Report, Government Decree 11/2005.(I.26.) on the Settlement of Debts Arising from Certain Housing-Purpose Loans was passed. Our comments in the course of codification were, however, not taken into account.]

In terms of treating the housing problems of disadvantaged families - among them Roma families - there is a need for government bodies and municipal governments to assume a greater role in order to prevent the process of decline. In disadvantaged regions, local governments of settlements struggling through lack of resources often do not undertake to carry out schemes and applications even though also state-funded (for example, local government building of tenement flats, or the launch of debt-management problems) because in their experiences these types of services attract the ”poor” of the neighbouring settlements. They consider prevention and restriction of this migration process more important than the support given which makes up a few million forints. A solution to this problem could be the creation and operation of a small-area social provisions scheme, thereby allowing municipal governments to expediently divide social burdens and tasks, whilst also taking local interests into account.

1.3. Housing problems and their connection with the violation of children’s rights

In this past year as previously, we examined cases of violations of children’s rights in social cases, primarily in housing cases. Most of the established abuses were connected with a lack of material goods and minimal living conditions.

In the opinion of experts the risk of poverty for those lacking in tenement flats is twice as high as the national average, whilst for those living under the category of other legal title or without legal title the proportion is even higher: 26%.[55] Long-term unemployment of parents of working age and exclusion from the labour market constitute the greatest risk factor as far as child poverty is concerned. These figures and claims fit what we have experienced from our cases: poverty, lack of material goods, unemployment of parents and poor housing conditions afflict Roma children in particular, and severely jeopardise the exercise of their rights.

We shall present in detail a typical complaint, connected with lack of housing conditions and violation of children’s rights, which we expect to be solved as a result of local government cooperation.

In one district of Budapest a four-person Roma family was evicted from their home due to non-payment of utility bills. According to information given by the notary, it was likely that more than 30 homes would be vacated for similar reasons. It was not possible to relocate the family so as to ensure that the children would be raised and cared for within the family.

In view of Article 6 (1) of the Constitution, by which: ”Every child has the right to enjoy the care and protection necessary for satisfactory physical, mental and moral development” we paid special attention to children’s rights in the course of our investigation.

From the letter received in reply from the notary and from the documents placed at our disposal, we ascertained that the eviction of the family had been expected for several months due to utility bill arrears. Should a family be threatened by eviction due to utility or rent arrears the children living in the family can be considered in danger for material reasons (at the least). In this case the effective intervention, help or consultation, of the Family and Child Welfare Services is indispensable. The eviction of the four-member family was commenced without the Family and Child Welfare Services having drawn up a concrete plan, together with the parents, for the suitable placing of the family together with the children. This omission without question violates the provisions of the Child Protection Act.

It must be stressed that the problem of housing for children can never be solved in and of itself, since one of the most important principles of child protection is that children must not be separated from their family exclusively because they are placed in danger on financial grounds.[56] In view of this we consider it unacceptable and in breach of section 7 of the Child Protection Act should a child evicted together with their parent be placed in a temporary children’s home, or the offer be made to place the child with a substitute parent, assuming that this situation is not justified on any other grounds.

In connection with the children’s rights listed in the Child Protection Act, in view of the established irregular practice (in the interests of future breaches of the law) and the content of point 4 of Parliamentary Resolution 46/2002.(VII.12),[57] we proposed to the representative body of the municipal government that they draw up a comprehensive scheme, and develop a new practice in order that those families with children awaiting evection, before being dislodged, be able to plan and ensure later housing with the cooperation of the Child Welfare Services. We requested that the scheme, or rather the practice drawn up based on the scheme should contain the required preventative elements concerning children being placed at risk, and that it should appropriately facilitate the social integration, or reintegration of families in the long-term.

The settlement’s mayor informed us that they had prepared a proposal as a result of our initiative in the interests of preventing indebted families with children from being made homeless, which the representative body is soon to discuss.

1.4. Benefits complaints

In the past year alongside housing problem the largest numbers of social complaints were related to benefits. Families with many children generally complained of the low level of benefits, the rejection of their applications for interim emergency benefits, or the process of receiving benefits and the manner adopted by the officials involved. The complainants often feel that, as we have already indicated, local governments are ”anti-Gypsy”, and reject their applications as a result of this. In connection with benefits the verification of adverse discrimination is difficult. The system for social provisions and allocations is complicated and divided up. It is not easy even for professionals working in the social sphere to gain an overview of the system. It is almost impossible to prove whether it was the applicant’s Gypsy origin or the lack of preparedness of an otherwise well-intentioned official which meant that the applicant did not receive adequate guidance and assistance.

In benefits cases, local governments act under their so-called ”self-government authority” powers, regarding which it is worth knowing that decision-making – the acceptance or rejection of a benefits application – falls within the competences of the representative body. The representative body, however, may choose to delegate these competences to a committee specialising in social cases or to the mayor. The latter option is mainly characteristic of small settlements.

In the past year there was even a case where a complainant was dissuaded from submitting an application for benefits by the mayor’s office, where they claimed lack of funds With this the application no longer had the chance of a favourable outcome, whilst our complainant was excluded from the possibility of legal remedy, i.e. his constitutional right to social security and legal security was breached. In the interests of ensuring equal access to social provisions, the mayor’s office must without exception always create the conditions for benefits applications to be submitted, and keep a record of applications.[58]

Benefits complaints usually also throw up problems of a more general nature. There are numerous forms of benefit and support, yet in spite of this, the level of poverty in Hungary has not decreased, in fact many surveys have indicated that, for example, the exclusion of the Roma population has increased in recent years.[59] The social and labour market inequalities which have developed following the democratic transformation can not be corrected by the means of benefits. One of the largest worries is the negligible effectiveness of benefits and social allocations.

The cases examined by us also bear out the fact that benefits received are of a very low level, and not even sufficient to guarantee the minimum subsistence of the families concerned. In the time period covered by the Report there were instances of complainants, in their desperation, requesting financial support from our office. In such instances, having sought out the municipal government concerned, we provided the client with detailed information about the local method of applying for benefits. In the course of our investigations it was revealed that families were generally the recipients of several types of benefits, but that their dissatisfaction first and foremost arose from the remarkably low level of these. For most benefits the sum is determined in relation to the bottom level of pension. In recent years the ”drop” in the level of the benefits is a result of the relative loss in value of pensions.

We would like to set forth in detail two of the benefits cases examined. The first is a question of awarding the higher level of child protection support; the second of the illegal practice of outstanding tax payments being deducted from benefits. In both cases complainants voiced the grievance that already low level social assistance had been further reduced.

The president of a minority self-government related in his complaint that he was the guardian of an under-age child. He receives accident retirement allowance, alongside which the minority self-government decided to award him a symbolic honorarium. The latter qualifies as taxable, so he has to choose: he can either forego the honorarium or the child living under his guardianship will no longer qualify for the higher level of child protection support.

Under section 20 (8) of the Child Protection Act, the higher level of regular child protection support accrues to the relative bearing the obligation of raising the child as guardian if the concerned does not have any taxable income, and is granted a public pension, accident pension, regular social financial support similar to a pension or old age allowance.

According to the Minister’s justification, the higher level of child protection support can be awarded if, ”The child is raised as the ward of elderly relatives in a disadvantaged social position (e.g. grandparents) who have an obligation to raise the child. (…) Earlier in such cases the child had to be removed from their family and an elderly grandparent or other relative was employed as foster-parent”.

Thus the Parliament in the interest of preventing the latter measure made possible the granting of the higher level support. This aim, however, can not be realised to the full, since the Child Protection Act lays down unduly stringent conditions for granting the higher level of child protection assistance.

A general condition for the granting of regular child protection support is that the per capita income in the family must not exceed the current bottom limit of the public pension. Municipal governments are obliged to investigate the income situations of such families. From all this it follows that whether or not the person bound to raise the child has taxable income, the family’s per capita income may not exceed the limit defined by s. 19 of the Child Protection Act. The regulations, therefore, differentiate between persons of identical legal status and living in the same social situation (children entrusted to a guardian) purely on the basis that one family gains their income under a different legal title. In our opinion, there are no constitutional grounds for a family that meets the legal requirements, i.e. regarded as being in need, to be excluded from the higher level of support exclusively because the family also has taxable income. This disqualifying condition is at odds with the desired aim that children living under guardianship receive extra support compared with children living under similar social conditions.

An amendment to the conditions for higher level support would mean a rise in budgetary expenditure to be assigned to the social sphere. For this reason we turned with a legislative proposal to the Minister of Youth, Family, Social Affairs and Equal Opportunities, that the question be reviewed of what amendment to the law would be necessary in order that those in need not be unduly excluded from higher level child protection support. We have not yet received a reply from the Ministry at the time of writing the Report.

In one settlement an illegal practice had been drawn up in the mayor’s office, whereby overdue tax payments were deducted from child protection support. The president of the Gipsy minority self-government initiated an investigation to bring a stop to this contravention of the law.

In the course of our investigation we established that the deduction of overdue tax payments from the child protection assistance was illegal, and violated constitutional rights to legal security as well as rights connected to protection and care of children.

The aim of regular child protection support is to promote the material support of socially disadvantaged families, the upbringing of the child in a family environment, and to prevent the child being taken from the family. This support exclusively serves the interests of the child, may only be used for the child and not to settle possible debts of parents. This is confirmed by section 18 (1) of the Child Protection Act, in which it is unambiguously determined that the local government’s representative body places child protection support and supplementary child protection support at the disposal of the eligible child.

This is also confirmed by section 74 f) of the LIII Act of 1994 on Judicial Execution (Judicial Execution Act), which states that financial support based on the Child Protection Act is exempt from court execution.

In the current case the representative of a public administration body of public authority (in this case, the local government) employed the legal institution of assignment in a way contrary to its intended purpose. For according to section 328 of the Civil Code the legal institution of assignment may be used in legal relations governed by civil law in the instance of ”persons” (as according to the Code) in a coordinate position to one another. The local government’s statement on assignment authorised the mayor’s office to carry out a unique form of tax levying for every subject of taxation participating in social support. The local government thus used this civil law institution to create an apparently legal framework for the recovery of debts from families that given their current situation could not be accomplished legally by other means.

At the close of the examination we proposed to the head of the public administration office that, acting within its powers of legality audit, it draw the attention of the representative body to its illegal procedures. We also requested that the money deducted for years as overdue tax payments be returned to the families concerned.

We also asked that the public administration office clarify in which social benefits cases the anomalous tax collection practice introduced by the settlement was used apart from the instance of child protection support. We additionally proposed that they examine the legality of such cases should they occur.

The head of the public administration office informed us that the municipal government had cancelled with immediate effect, based on a decision made by the representative body, the deduction of overdue tax payments from regular child protection support. In addition, an employee of the public administration office conducted an investigation of the local government, in the course of which it was ascertained that in all cases wrongfully deducted money had been reimbursed.

In total, money was deducted on the basis of the statement of assignment in the case of 83 people; in 28 instances from regular child protection support, in 19 instances from the regular social benefits of those of working age, and in 6 instances from nursing benefits. The illegally deducted sums have now been reimbursed.

We also informed the county chief prosecutor of the case, who did not see the need for further measures of the prosecution service given that the legal infringements had already been eliminated.

In summary of benefits complaints we can conclude that funds assignable to benefits are only minimally adequate to mitigate families’ subsistence concerns. This has the effect that the social exclusion of those concerned becomes ever more marked. In the opinion of one sociologist: ”amidst the heavy competition for ever scanty state resources, or for advantageous market positions, local government benefits today can only be of a divisive nature. The responsibility for this divisive nature is borne primarily by macro-structural determinants, which call into being and recurrently deepen social divisions.”[60]

The benefits system in itself does not offer a long term solution to poverty elimination. Escape from poverty is only possible through employment and return to the labour market. For this reason the most significant help that could be given to complainants would be the creation of periodic, or still better, permanent job opportunities.

1.5. Irregularities in the course of building case procedures

It is primarily the duty of owners to have the necessary work carried out to ensure the good condition of buildings and building structures. On the basis of the current legislation, should they fail to fulfil this duty, they may be ordered by a building authority resolution to do so. Some owners, however, due to social or financial circumstances are unable to carry out the renovation work ordered. In such instances the building authority should take measures and arrange for the necessary renovation to be carried out in order to safeguard the fabric of the building, if necessary in place of the owner but at the owner’s costs.[61] In the course of the building authority’s measures the principle of progression must come into force, i.e. attention must be paid to changes taking place in the state of the property, and maintenance action must also be taken prior to these changes to prevent the building from posing a life-threatening danger.

It is a general experience that in spite of these legislative provisions, maintenance and reconstruction does not take place, as a consequence of which, the condition of houses deteriorates, and as a result often become uninhabitable and perilous. Thus not merely the owners, or residents, can be held responsible for the emergence of this situation, but also the negligent building authorities. The common feature of the cases presented below is that the soulless, bureaucratic behaviour of authorities also contributed to the worsening of social and housing problems, and deterioration in quality of life for disadvantaged Roma families unversed in the law. There have also been instances of the health and bodily integrity of families being placed in danger for protracted lengths of time due to procedures not being initiated by the authorities.

1.5.1. ”Segregation” or ”exclusion” in building authority procedures

According to his statement, one complainant was forced to sell his house since, in spite of being in need, he had not receive any support for the renovation of a property that had become critically dangerous. In his opinion, the building authority did not take any measures since they did not wish for the Roma family to remain in a street located in the city centre.

According to the information given by the notary, the client did not request that either the local government or the building authority take steps for the completion of work to protect the soundness of the building. By contrast, the complainant claimed that he made a spoken request, in which he asked for support to renovate the home, though they did not occupy themselves with this request to any effect. The family living under poor social conditions was unable of its own resources to renovate their adobe house.

The property of the complainant was located a few hundred metres from building of the mayor’s office. The house which lies on the edge of the plot of ground would have been easily visible even from the street. It is almost impossible that the notary and local government officials in charge of building authority tasks would not have noticed the deterioration in fabric of a building located in such a frequented place. Thus the authority was aware of the circumstances making necessary the initiation of procedures by the office. In spite of this no measures were taken. This renders it probable that the reason for the neglect of the authority was not inattention but deliberate breach of obligations, i.e. they deliberately allowed the Gypsy family’s domicile to become uninhabitable in a street located in the centre of the city and valuable in real estate terms. The lack of measures clearly played a part in the fact that the complainant was forced to sell a property that had continuously deteriorated and become unviable for living. From the purchase price the Roma family was only able to buy a cheaper home in another settlement: thus the local government ”rid itself” of the Gypsy family.

In our proposal we called upon the notary to devote increased attention to the fulfilment of obligations laid down by building legislation. In compliance with our proposal, measures were taken in order to prevent future such omissions, including the recording in writing of spoken applications. At our request, the public administration office – in the framework of a new investigation – established that in the area falling under the competences of the building authority, the engagement of the building authority had been found lacking in the case of other buildings too.

1.5.2. Irregularities in view of the right to life and bodily integrity

In the instance of another case examined, the municipal government urged the complainant to find a ”roof over his and his family’s head” as soon a possible. The complainant was called upon to leave his present accommodation since the municipal government has brought a decision to do away with the block of flats in which they lived, a severely dilapidated building. The local government also resolved that help would be offered in the form of non-repayable support to his family in order for them to be able to buy a home in any one of the neighbouring settlements. The complainant in compliance with this – on the basis of his own choice, or rather decision, yet with the support of the local government – bought a property in one of the neighbouring settlements: the new owners were not, however, allowed to move into the ”new house” by reference to the fact that flat into which they desired to move was critically dangerous.

Our examination concerning the building clarified above all that in the register of title deeds no enforceable and binding obligation had been registered relating to the restoration of the state of the house, its critically dangerous condition and restriction of its use, which could have had an influence on its sale and purchase or the utility of the house. A record and acquaintance with such a record would have enabled the complainant to consider the purchase in the knowledge of the facts displayed on the page of titles, and eventually to desist from his purchasing intention, having weighed up whether or not he was able to assume the prescribed obligations.

The leaders of the village government were officially aware from 2000 onwards of the state of the property which had been struck by earlier internal flood damage. Nevertheless higher building authority procedures were not initiated although they were aware that the property was in use despite the critical condition of its fabric, since the flat had been used as a home before the complainant’s purchase.[62]

The examination also demonstrated that in the absence of any procedure the critically dangerous state of the property had not been established, nor had an official resolution been made concerning the termination of the house’s use. Due to the absence of a resolution the actual state of the house was not even recorded in the register of title deeds. As a result of these omissions, the complainant acquired a house that was in the last analysis uninhabitable, and in which the family was forced to live for months. Once the critically dangerous state of the house had become clear, however, they were forced to leave the flat and became temporarily homeless, or rather were taken in.

The burden of the omissions is aggravated by the fact that the leaders of the local government did not initiate higher building authority procedures despite having known for at least four years of the dangerous state of the property and the fact that the property was inhabited during this time.

The suspicion of adverse discrimination is raised by the fact that the mayor of the local government and notary for several years – though in possession of an expert report about the potentially critical threat to life – did not press for the property to be established as critically dangerous until the Roma family who had bought the flat attempted to register their change of address. Following this they were summoned on two occasions to have a surveyor’s report prepared, this having being imposed as a condition of moving in. The leaders of the local government, therefore, in a way both legally and ethically objectionable, employing the provisions of building regulations on the critically dangerous state of buildings, rejected the attempt to register change of address of the complainant and his family, thereby violating the family’s constitutional right connected to choice of domicile.

In our proposal we pointed out that: everyone has a right to legal security, in particular clients to obligatory information from authorities and the guarantee of the rights of legal remedy. In the interests of lawful practice being set up, we drew the attention of the notary to the need to indicate the existence of the critically dangerous building to the building authority of the first instance, and to initiate the conduct of the connected proceedings, the carrying out of necessary measures, as well as to the need to focus increased attention on this issue in the future.

[We requested of the leader of the Public Administration Office that the office investigate in the whole settlement – within its building supervisory competences - whether or not there are similar buildings directly posing a threat to human life, health, public security or property security. We asked that necessary measures be taken should this prove to be the case. The investigation has not yet drawn to a close.]

We proposed that the local government compensate the material and ethical damages suffered by the complainant and the complainant’s family. The local government accepted this proposal. The purchasing of a home for the family – with the cooperation of the Ministry of Justice’s Anti-discrimination Roma Customer Service Network – is currently underway. It is to be expected that a solution will be found to the family’s housing problem in the near future.

1.5.3. Exposition of irregularities uncovered during the handling of flood damage by authorities.

At the beginning of March 2001, an unusually severe flood afflicted settlements along the Upper-Tisza. A complainant who turned to our office had been located together with his children to an outbuilding at the time of resettlement following the flood. Other Roma families, who had been forced to leave their homes due to damage caused by the natural catastrophe, were temporarily located in other properties. The housing conditions of the disadvantaged flood victims were not settled, despite three years having passed since the flood.

In settlements afflicted by the flood it became the practice that victims in the most hopeless situation – Roma residents, as it is the most in need and without resources – were placed in blocks of flats condemned to being demolished that earlier residents had been forced to leave precisely because of the flood damage.

The building authority did not write a resolution to stipulate obligations of restoration for owners or those in charge of flood-damaged buildings.[63] This is reasonable from the point of view that these building had been condemned to demolition on the grounds that they were classified as buildings that could ”not be profitably restored”.

The building authority, however, did not take care of the restriction of use of the buildings in the interests of protecting the lives and bodily integrity of those accommodated there. We have to interpret it as an irregularity that neither directly following the flood damage, nor in the following three years did the authority take any measures despite the fact that families were using these dwellings as their home.

The responsibility of the local government in connection with changes occurring to the state of blocks of flats – particularly following natural catastrophes – is stressed, since, as an authority operating on the spot it is in the position to observe deterioration in condition. The mayor and notary of the settlement were officially aware of all these cases, yet they did not take necessary steps in the interests of preserving soundness of the building, or in preventing a life-threatening situation from coming to bear. Nor did they initiate higher building authority procedures.

This case is given particular weight by the fact that persons or families already in a disadvantaged position who became even more defenceless as a consequence of the catastrophe, did not only end up in hazardous conditions due to the negligence of the authority, but precisely as a consequence of measures taken by bodies cooperating in their re-housing. In view of this, we established the responsibility of the higher building authority, the state bodies participating in the accommodation process and the local government alike.

The local government refused to accept responsibility for the situation which had arisen as a consequence of measures left undone, and laid an additional burden on families already in need, since with its evasive conduct – claiming shortage of funds – it deprived them of the possibility of escaping from their unworthy and untenable housing situation. The neglect of both the local government and the notary contributed to the fact that families with children were forced to live in uninhabitable properties for months or years among circumstances hazardous to life and health.

In our report closing the investigation we proposed to the notary exercising the competence of higher building authority to assess buildings condemned to demolition as a consequence of flood damage in the settlement, and on this basis to establish which have not been demolished, and on the basis of expert opinion to take necessary measures (renovation, demolition, declaration of building as critically dangerous, discontinuation of use etc.).

We requested of the head of the public administration office that within its building supervisory competence, it examine the state of other properties in the flood-afflicted settlement posing a direct threat to life, health, public security or property security which were affected by the flood, but that for various reasons had not been restored.

We additionally proposed to the Minister of the Interior – as the head of the body under whose competence the direction of bodies participating in accommodating of residents after a catastrophe situation falls – that the procedures carried out by authorities in these instances be examined, with particular view of the instance of our complainant being accommodated in an outbuilding.

1.5.4. Irregularities arising from ”confusion of roles” of owner and authority

The local government of one city outside the capital marked out a collection of tenement houses in the historic city centre to be sold. The intention of the local government, who exercised the rights of owner, was clear: to achieve the demolition and sale of a block of flats which was in a deteriorated condition and spoiling the city image. The block of flats was located in the business quarter and standing on valuable real estate.

In this instance the clear – and acceptable – aim of the city leadership was the construction of a suitable standard building to fit the city’s image in the place of deteriorated tenement flats. The sale of the property was made necessary by the circumstance that the building had been in a dilapidated state for many years. The question of local government responsibility is, however, thrown up by the fact that renovation and maintenance works were omitted for years. The local government – as owner – did not take measures for necessary building work to be carried out to protect the fabric of property clearly in a poor state.

The same rules apply to the local government - as owner of property – as to any other owner of property in private possession: i.e. there is a duty to ”maintain the property’s good condition”. The building authority can oblige the owner to carry out the necessary maintenance, and what is more, should it be necessary in the interests of developing a more favourable image of the settlement, the building authority itself may order the obligatory renovation of the building structure or part of the structure.

According to the rules of the GSAP, in connection with local government property only the building authority indicated by the public administration office may bring a resolution obliging the local government to carry out, for example, renovation. In this instance, however, it is the obligation of the notary to notify the selected authority. This authority action did not occur in the case examined.

The renovation did not take place, the building authority did not stipulate the obligation of restoration, and did not force the owners, using the authority means lying at its disposal, to carry out the necessary work, with which the further deterioration of the building’s condition could potentially have been avoided. This – as subsequently emerged – contributed considerably to the fact that the building later had to be demolished, and that vacation of the premises became consequently inevitable. This process ultimately contributed to the infringement of the residents’ constitutional rights.[64]

The demolition work was begun prior to the complete vacation of premises (in contradiction to stipulations found in the resolution on permission for demolition). The building authority only suspended the demolition of the building after 9 months, yet even then did not order the discontinuation of use of this critically dangerous building. This only occurred one year after the commencement of the demolition work, meaning that residents were exposed to a direct threat to their lives and bodily integrity during that time.

Throughout all this time, the local government, both directly after the demolition, and in the subsequent (longer) phase, failed to initiate procedures in the interests of protection of bodily integrity (or lives) of the property’s inhabitants.

The owner of the property, i.e. the municipal government and the notary exercising building affairs powers, is unequivocally guilty of neglect for the fact that families with children were forced for months to live in homes already critically dangerous.

Regarding the lessons to be learnt from this case, it is necessary to stress another important circumstance. The local government, alluding to the state of the building, with its decision to sell the property simultaneously freed itself from the dilapidated block of flats and from the impoverished, disadvantaged tenants, or home users living there. This fact suggests the violation of the provision declared in Article 70/A (1) of the Constitution forbidding adverse discrimination as we can not exclude the possibility that the local government omitted to carry out repairs to the building since it wished to ”free itself” from multiply disadvantaged inhabitants (among them those of Roma origin) living in long-term poverty. This case also gives an illustration of a local government, exercising the competences of owner, achieving its economic aims through lack of adherence to building regulations. Once the inhabitants were forced to leave their tenement flats, it could then sell property that had become marketable.

The properties affected by the complaint were demolished. The possibility, therefore, no longer existed of restoring their original state. In the interests of preventing further irregularities, we proposed to the local government that they assess the condition of their properties used for living purposes which are in a deteriorated state and inhabited by those belonging to the impoverished layer of society. We recommended that they take appropriate measures as laid down in the various rules of law in order to fulfil their obligations towards maintenance and renovation.

Over and above this, we also asked them to take the appropriate measures due to the omissions observed in the course of the investigation, to ensure that in the future the mayor without fail indicate to the representative body (which exercises the competences of owner) deterioration in fabric of local government property posing a threat to residents, and initiate necessary local government and other measures.

We also drew attention to the fact that in the case of buildings in the possession of the local government it is the duty of the notary to propose the ordering of renovation to the designated building authority of the first instance.[65]

In our Report we also indicate, therefore, that public administration bodies should pay more attention to those instances where it is the duty of the local government notary to take action in the case of critically dangerous houses, particularly in the case of local governments’ own properties. It is only possible to ensure the interests of those living in local government flats, or those reliant on local government support, if the building authority makes use of the possibilities laid down by legislation, and meets its obligations, even if at odds with the local government’s proprietary interests.[66]

1.6. Legislative irregularities on letting of social housing

In the past decade and a half the ownership structure of the housing stock has undergone fundamental changes. The state tenement flats that were in the hands of soviets, or real estate handling bodies, entered the possession of municipal governments in 1990. It gives a good indication of the dimensions of the transferred real estate assets that in the largest provincial towns the proportion of local council inhabitants at the time was approximately a third, whilst in the capital almost every other flat belonged to this category. The majority of local governments, however, were not in the position to retain this housing stock, due to which privatisation assumed ever greater proportions.[67] The privatisation did not merely serve an increase in revenue. The majority of flats sold would have required renovation, and local governments desired to be absolved from this obligation through the privatisation route. Currently the proportion of local government flats within the whole housing stock does not account for more than 5%. In Budapest the proportion is around just 7%. Due to the decrease in real estate assets, local governments are less and less able to meet the population’s need for social housing. A solution could be offered by the continuation or expansion of the home building programme announced by the Government. This would, however, necessitate increased state – or combined EU – involvement.

It is not only lack of social housing that represents a problem, but also the fact that a significant number of local governments do not have long-term conceptions for the housing stock’s fate. In many settlements housing management means no more than the choice of tenants for properties that become vacant. The revenue from social flats does not cover a fraction of the costs of maintaining the properties, nor do local governments ensure the necessary resources for this aim. Thus the technical state of the social housing stock is increasingly deteriorating. A considerable proportion of properties have become unsuitable for being allotted to those in need.

A home is the most basic condition in life, it provides the guarantee of shelter, and thus occupies a unique place among local government assets. According to the content of the Constitutional Court’s 64/1993.(XII.22.) AB resolution, legislation may restrict more forcefully the ownership freedom of local governments than in the case of other assets in the interests of housing being made available for citizens. Housing management is one of the public service tasks of local governments. It follows from this that certain provisions of the LXXVIII Act of 1993 on Tenancy of Flats and other Premises, and their Alienation (Tenancy Act) do not simply refer to self-governments as owners, but additionally as constitutional public authority bodies. One fundamental constraint of ownership rights is that, according to section 3 (1) of the Tenancy Act, ”The conditions for letting local government housing on the basis of social situation must be determined in a by-law”.

In our experience, though local governments satisfy legislative requirements, they often do not consider constitutionality their primary standard, but place instead greater emphasis on their ownership interests.

The European Roma Rights Centre turned to us with the complaint that numerous by-laws exclude for shorter or longer periods squatters from the possibility of access to social flats. The Roma Civil Rights’ Foundation also submitted a complaint regarding this matter. According to the viewpoint of these legal defence organisations, these regulations violate several provisions of the Constitution.

In recent years it had become ever more common for local governments to state in by-laws that a tenancy contract can not be signed with illegal occupants. (In Budapest such terms feature in the housing regulations of eight district governments.) We are convinced that the threat of this legal disadvantage does not have the primary aim of protecting local government properties and of taking a stand against illegal occupancy. For representative bodies are well aware that for families unable to solve their housing problems within legal bounds, legal consequences will not be of real deterrent force. It is much rather a question of local governments not wishing to cooperate in solving the housing concerns of families. In order to conceal this reluctance they have created an apparent legal point of reference.

Numerous constitutional concerns can be formulated regarding these regulations. In our opinion, it is not permissible to exclude illegal occupants from the sphere of those entitled to social housing by by-law.

According to the interpretation of the Constitutional Court, ”The legislative competences of local governments in regulating tenancy relations are not boundless. Local governments only possess competences to regulate tenancy relations on the basis of authorisation given by laws”. In the case of the district governments in Budapest, the authorisation to create regulations is even tighter, since the letting out of housing in their possession on the basis of social, income or property situation can only be regulated within bounds laid down by the Metropolitan Assembly’s housing decree.

The Tenancy Act does not provide that an applicant qualifying as an illegal occupant may be excluded from the possibility of access to social housing. (Nor does the housing decree of the Metropolitan Assembly contain such a rule.) It follows from this that local government housing by-laws containing such an expression overstep the framework rules set down in law, i.e. they infringe rules on legislation.

The Constitutional Court established as a point of principle that the local government had overstepped the authorisation granted to it by the Tenancy Act, when in its regulation of letting on a social basis it ”Also indicated circumstances not belonging to the sphere of social situation”. The phrase, for example, that a condition of access to housing is to have lived in the given settlement (district) for several years, is unconstitutional for this reason. Drawing a conclusion from the legal interpretation it can be asserted that the representative body is not entitled to tie the letting of social housing to a condition not connected with social situation. Therefore, the circumstance that an applicant is classified as an illegal occupant may not be taken into consideration when a decision on letting is being made.

There are other reasons too why by-laws do not comply with constitutional requirements. Following from the principle of legal security (as forming a part of constitutionality) rules of law can not establish obligations regarding the period of time before the rule was promulgated. According to the practice of the Constitutional Court a prohibition also arises, if though the enactment of the regulation did not happen retroactively, the provisions of the regulation have to be applied for legal relations which arose before the regulation came into force (according to a an express provision pointing to this).

The local government housing by-laws exclude those persons from the possibility of access to social housing who were illegal occupants in the period of time (usually over 3-5 years) preceding the announcement for applications or the submission of the application itself. Thus the regulations attach adverse legal consequences to conduct occurring before the regulations were passed, thereby violating the prohibition on legislation of retroactive force.

In forming a judgement on the constitutionality of by-laws we also had to examine whether or not they observe the requirement of equal treatment. These by-laws establish identical conditions in the case of each claimant for social housing, thus the regulations seemingly do not accord Roma more unfavourable treatment than members of other groups in comparable situations (or in the current instance to other applicants).

The research work of sociologists indicates, however, that a significant number of Roma belong to the poorest layer of society. They are afflicted both by unemployment and ethnic discrimination, thus, a local government flat would be their only chance of obtaining legal housing. As the Council of Europe’s Commission against Racism and Intolerance (ECRI) wrote in their third report on Hungary, Roma are forced to suffer wide-ranging discrimination particularly in terms of access to public services, housing, employment, access to goods and services and education. Their report also draws attention to the fact that members of the Roma minority are evicted in disproportionately large numbers.

In view of these circumstances, the Roma community is affected particularly severely by there being a low number of local government flats to be let according to social criteria. Our standpoint is that the deficiencies of the legal regulations could lead to the violation of the requirement for equal treatment, or allow for the possibility of discriminative law enforcement practice.

The legal defence organisations that turned to us complained primarily of the provisions found in (Budapest) district government decrees. Thus in the interests of redressing irregularities connected to constitutional rights, we requested that the Metropolitan Public Administration Office take measures. The Public Administration Office accepted our recommendation, and gave a legality opinion on the by-laws contested by us. We wish to consult with the Ministry of the Interior on potential further legal steps.

In the past year we also received a complaint that a local by-law sets out unduly strict conditions for access to local government flats. Pursuant to the by-law, persons in possession of housing property and movable or property assets of considerable value (exceeding 300, 000 forints) are not eligible for social housing.

It belongs to the sphere of autonomy of the local government that on consideration of local circumstances, social relations and housing conditions of inhabitants, it may establish the conditions for entitlement to social housing. The restriction to legislative freedom is, however, that those genuinely in need not be excluded from the sphere of the eligible, and that their applications must be considered. Regulations not complying with this requirement may violate the right to social security, and may qualify as discrimination on the basis of financial situation.

The by-law examined used the phrase ”movable assets”, which in technical legal language means the total of personal effects. Should this provision be strictly adhered to, then even persons simply owning articles for personal use, household appliances, furniture, clothing and work implements could not be granted social housing, since the total value of these usually exceeds the limit of 300, 000 forints. The regulations made possible arbitrary law enforcement, since not only those who owned assets of high value (paintings, jewellery etc.), but also those who were in possession of certain items of indispensable property (for example, a computer necessary for study purposes) were excluded from the sphere of the entitled.

The provisions of the Tenancy Act and not of the Social Act are authoritative for the letting of social housing. The Social Act can, however, offer a point of reference as to financial circumstances constituting social need. For the granting of certain monetary benefits, the Social Act sets as a condition that the applicant not possesses assets. It is however not possible to deny social support for the reason that somebody is in possession of real estate, vehicles, motor-driven cultivating and work instruments whose market value calculated separately does not exceed that of twenty times the prevailing lowest public pension. This sum was 464, 000 forints in 2004. The by-law, therefore, determined the objective criteria for being in need significantly more stringently than the Social Act.

In the interests of preventing irregularities related to the constitutional right to social security, we proposed that the representative body – taking into account the social circumstances and housing situation of local residents – review the conditions for entitlement to social housing as laid down in the by-law. The representative body accepted our legislative advice.

Under the housing by-law of one local government, the role of the notary was to examine whether or not applicants are entitled to local government social housing based on local regulations according to social situation. It was also delegated to the competences of the notary to register claims complying with the requirements, and to reject applications otherwise.

Local government tasks may be discharged by the representative body and its organs: the mayor, the committees of the representative body, the body of a partial self-government and the office of the representative body. Following from this the notary – as a local level state administration body – may only participate in the preparation of decisions concerning local government housing and their execution; he may not participate in the bringing of the decision. The aforementioned regulation essentially gave a decision making competence to the notary, since was able to make a preliminary judgement on application claims for housing. We held it the curtailment of the representative body’s competences that the notary did not merely examine the existence of conditions defined in the by-law, but could also reach decisions on the rejection of applications.

In the case examined we drew the attention of the representative body to the need to refer all decision making on entitlement to social housing to the competences of the representative body. The representative body accepted our legislative proposal.

In the past year one housing by-law examined contained the rule that the representative body makes a decision once a year on the social housing letting register. The claims for social housing should be carried into effect in the order of names on the register. The by-law also stated that ”in exceptional cases – should a decisive change occur in private circumstances – the representative body may modify the register’s order”.

The Tenancy Act does not stipulate the time limit within which housing claims must be judged. Representative bodies, however, may not frame procedural rules which are in breach of an applicant’s right to fair procedure. The right to fair procedure is a requirement which every body discharging public tasks is expected to observe, irrespective of whether the process is bound to formalised rules or not. The assessment of housing claims belongs to the discretionary competences of the representative body. The realisation of the right to fair procedure has the nature of a guarantee, whose fundamental touchstone is that the representative body must assess the claim within a reasonable time frame.

The by-law examined also allowed for the possibility of the representative body modifying the ”order” of the list of applicants compiled every year. No authorisation is given, however, for names to be taken up on the list during the intermediate time should a significant change occur in the housing conditions of a family (or person) living in the settlement.

In our opinion this regulation violated the right to fair procedure of those applying for social housing. In the interests of redressing this irregularity connected with constitutional rights, we suggested to the representative body that, by amending the regulation, it make possible the judgement of applications for social housing within a reasonable deadline and allow for exceptionally prompt decisions to be brought in warranted instances. The representative body accepted our legislative advice.

In not one of the cases presented here did public administration offices detect deficiencies in regulations. For this reason it is necessary for us in this Report as elsewhere to put forward the expectation that public administration offices pay increased attention in the future to examining the legality of local government legislation.

1.7. Evaluation of state and local government measures aimed at eliminating so-called ”Gypsy settlements”

In the past year we prepared an extensive report on the situation of Roma inhabitants living on settlements or in settlement-like environments, particularly on the Ózd and Hétes settlements. Below we have summarised the most important aims and findings of the report and tasks entailing from these.

With this investigation we wished to draw the attention of the Government, municipal governments and other competent bodies to the serious social problems of those living on settlements or in a settlement-like environment. Our aim was additionally that of accelerating the implementation of government plans and measures aimed at bringing an end to and preventing the re-growth of such settlements and settlement-like environments. We also intended to help in improving the living conditions of those on the Hétes settlement.

We concerned ourselves with the general problems of re-growth of the settlements and settlement-like environments. We examined the execution of the Governmental Roma Programme’s tasks related to this issue, and as well as conducting an overview of questions of a general nature, occupied ourselves with the situation of Roma living on the Ózd and Hétes settlements.

On the basis of a concrete investigation of the Hétes settlement, we established that housing conditions and living conditions violate human dignity, children’s rights, as well as rights related to social security, bodily and mental integrity of the Roma population living there. The municipal government has for many years postponed and neglected measures which could have prevented and counteracted the continual threat posed to the constitutional rights of those living on the settlement.

The lack of measures violated the realisation of the requirement of equal treatment. Indirect discrimination had taken place, for the municipal government had neglected necessary public health anti-epidemic measures as well as obligatory maintenance of buildings, and protection of structure in this area of the city, where extremely disadvantaged impoverished Roma live among legally unsettled housing conditions.

In the course of the investigation we became familiar with rehabilitation programmes launched on the Hétes settlement by the Ózd city government. Their desire is to change the situation of those living there, thus the opportunity presents itself to make up for postponed and neglected measures, or for indirect discrimination. The undertaking of the new task provides the municipal government with extra burdens from an organisational and financial point of view too. Without central support it would not be able to bring the plan into effect, since in addition to the Hétes settlement other settlements in Ózd also require similar schemes to be launched.

Generally speaking, it can be established that disadvantages build up to such an extent on settlements or settlement-like environments that within the current system of social provisions it is not even possible to ensure the minimum subsistence necessary for the protection and preservation of the human dignity of those living there. We are of the conviction that those living on the settlements are not able to create the basic conditions of human existence from their own resources due to the complexity of their problems.

In the interests of ensuring equal opportunities, the State and municipal governments have extra obligations to improve the situation of those living on the settlements or in settlement-like environments.

Consecutive governments have acknowledged their obligations in this respect. Since 1997 settlement-related tasks have featured in every governmental Roma programme. These tasks, however, failed to be executed in every instance. This may be regarded as a serious neglect infringing constitutional rights.

The greatest obstacle to eliminating settlements and settlement-like environments is the lack of resources. Municipal governments have to launch local programmes in order to carry out government tasks, yet they are unable to expend significant sums from their budgets on the elimination or rehabilitation of these settlements and settlement-like environments. Local plans can only be effectuated if the State offers central support to the given local governments from earmarked funds, application money, and from resources able to be allotted to the building and development of tenement flats. In connection with this, it is of major concern that in the Central Budget money has not been, and is not being, put aside for bringing an end to or rehabilitating settlements and settlement-like environments, and for carrying out social and housing integration programmes for Roma living on the settlements. Or only symbolic sums of money have been allotted in comparison with the enormity of the problem.

In the interests of treating this grave situation appropriately, there is a need for measures of a general nature alongside and in connection with the governmental Roma programme’s tasks for settlements. There is a need to further develop social, child protection and employment support by creating extra services and support. Conditions have to be ensured for family helpers and employees of child welfare services to be present more often and in a more intensive form on settlements. There is also a need for measures to promote the economic and locational integration of settlements (currently segregated ”fallen off” areas), and to improve employment chances of those living there.

In the interests of the governmental Roma programme for settlements and settlement-like environments being brought into effect we requested that the Government and the Ministry of Youth, Family, Social Affairs and Equal Opportunities fulfil the tasks as soon as possible and carry out expertly the necessary planning, financing and organisational activities.

On the matter in hand, we sought the local government, and proposed that the rehabilitation plan commenced on the Hétes settlement be carried out as soon as possible, and that measures be carried out without delay which would effect an immediate change to the situation of those living in settlements on the edge of cities, and particularly the situation of those living on the Hétes settlement.

Our view is that in the present day the severe problems of the inhabitants of such settlements are not sufficiently well known. Many people are unable to imagine that families could still be living under such circumstances in twentieth-century Hungary. There is a need for publicity and professional discourse on this topic too in order for the social environment to understand and accept schemes aimed at putting an end to and preventing the re-growth of settlements and settlement-like environments. Were the majority of the population to agree with the necessity for these programmes, this would then have a coercive effect on the bodies and institutions responsible for the tasks being carried out.

2. Our attitude on so-called ”adoption cases”

Complaints (admittedly not in large numbers) also reach the Parliamentary Commissioner for National and Ethnic Minority Rights which have as their subject anomalies (real or imagined irregularities) concerning the adoption of children belonging to the Roma minority.

In the majority of instances, complaints are only based on suppositions. Their common characteristic, however, is that they provoke increased press interest (as well as public interest as a function of the influence of the press). In 2004, for example, this was manifested by the fact that external staff the ”informers” of one commercial television company even employed secret service means to substantiate their hypotheses on the adoption of children of Roma origin.[68]

In the views of some, a form of complicity exists between adoptive parents and guardianship office employees. According to these views, this cooperation serves the aim that non-Roma adoptive parents not adopt Gypsy children into their families. Behind this conjecture lies the stereotype that the abilities of Roma children are worse from the outset and that their adoption is risky since – in spite of upbringing – negative characteristics generally supposed of Gypsies emerge from time to time.

2.1. Minority rights and data protection aspects of adoption cases

The Constitution speaks of children and in general of the young only in relatively few words, when setting forth ”state aims”. Article 15 of the Constitution, for example, declares that, ”The Republic of Hungary shall protect the institutions of marriage and the family”, whilst Article 16 states that, ”The Republic of Hungary shall make special efforts to ensure a secure standard of living, instruction and education for the young, and shall protect the interests of the young.”

In comparison to this, the Child Protection Act expresses as a civic right that a child, ”Has the right – in an adoptive family or another form of provision replacing the family – to protection substituting the care of a parent or other relation”.

From the point of view of our analysis, the rule expressed in section 7 (3) of the Child Protection Act is important, which word for word states the following: ”In the course of substitute protection of the child, the child’s freedom of conscience and religion must be respected, in addition attention must be paid to the child’s national, ethnic and cultural affiliation”.

Yet religious, national and ethnic affiliations all qualify as special personal data, the collection, registration, storage, recording, processing (i.e. any kind of handling) of which are only possible alongside compliance with strict legal conditions.[69]

The essence of the regulation is, in brief, that special personal data may only be handled on the basis of statutory authorisation (or on the basis of statutory authorisation, in a lower level rule of law produced expressly for this purpose) in a specified way or if the concerned (the ”data subject”) has given their express – revealing that the subject is in possession of appropriate information on the aim of the data handling – and formal permission.

In the case of minors, and above all in the instance of children belonging to the new-born or baby ”age group”, this type of permission is clearly an impossibility. Thus in such instances, by general legal principles, the declaration of the parent (legal representative) may replace that of the child.

The question gives cause to reflect, however, on whether a parent who gives up their child anonymously (for example, by means of incubators placed at the entrance of health institutions) or even by revealing their identity, has the right, moral basis, or even opportunity to make a declaration in which the parent declares that their child belongs to a particular national or ethnic minority group, or possibly religious community. In connection with this, the parent proclaims – it must be stressed that this is done in the name of the child, i.e. in the nature of a ”substitute” - that they give permission for the handling of their child’s personal data, and potentially to expressly declare that they wish for the child’s rights as laid down in section 7 (3) of the Child Protection Act to be held in respect.

The question arises of whether anybody should be allowed to record a child’s religious or ethnic minority affiliation, and what is the meaning of the obligation to hold in respect such a type of ”special quality”. Another question that must be answered in this regard is that of whether or not authorities dealing with adoption can deviate from the word-for-word application of the law, bearing in mind the child’s best interests, or whether they have to follow the instructions of a parent giving up their child possibly due to behaviour for which the parent themselves can be blamed.

Naturally differing value judgements may arise depending on the age group of the child (since children from the age of 0-18 are equally to be understood under the definition of adoptable minor). For the situation is different if the child (or rather young adult) is already capable of making a statement about their own religious or national identity, and what is more capable in some form also of expressing the wish that they would like to be treated according to the criteria of the given group – for example, taking into account the group’s characteristic features.[70]

2.2. Complaints received in 2004 and a presentation of our investigations

A complainant drew our attention to the fact that three child protection professionals travelled to Italy with the aim of discussing the details of the adoption of 40 children in state care (among them presumably many Roma children) connected with a summer holiday in Rome – behind closed doors. The complainant, in connection with the issue of human trade masked as adoption, referred to the ”Emma Nicholson” report prepared on Romania at the request of the European Parliament, and the press conference – made familiar by the world press - of March 12^th 2004 assessing the report. The complainant also shared with us their fears based on press reports of organ trade, of which one of the target groups most at risk is that of young people having left child protection institutes (or still belong to the institute, but are on the run).

We asked for detailed information from the National Family and Social Politics Institute (hereinafter: NFSPI) as well as the competent ministry: we primarily asked questions concerning adherence to procedural rules for adoption.

The head of the NFSPI stressed in their reply that though there is no Hungarian rule of law expressly permitting contact being made – prior to adoption – beyond Hungary, there is also no directly prohibitive rule of law on this matter.

The Ministry of Health, Social and Family Affairs informed us that preparatory activities connected with the holiday and the potential adoption were conducted by the Ministry and the Italian Central Authority, which organises foreign adoption. Both of these central authorities had even signed minutes covering every detail. The only reason for the lack of country-wide organisation that would have attracted more public attention was that there was not sufficient time due to the approach of summer. The Ministry – with reference to the agreement – denied the suppositions of the complainant, arguing that the authorities involved in the case had ensured the safety of the children concerned, and that in the course of potential adoptions following the summer holiday all Hungarian rules of law would be adhered to.

At a later date we learnt from the press that of the 17 children who had made the journey, several had been adopted by Italian families according to Hungarian procedural rules (neither by curtailing nor circumventing the rules).

2.3. An investigation of ours initiated by the Roma Press Centre’s fact-finding reports

As already mentioned in the introduction to this chapter, at the end of 2004 interest around the question of the adoption of Roma children came into the foreground once again. This was due to staff of the Roma Press Centre (hereinafter: RPC) ”testing” the approach of guardianship office staff in two large cities outside the capital. On November 16th 2004, for example, two of them, passing themselves off as non-Roma adoptive parents – concealing their actual intentions – asked the employees of the child protection services if it would be possible for the child to be adopted by them not to be Roma: i.e. they inquired what ”guarantees” were available to them in order to avoid the adoption of a Roma child.

In another settlement using essentially similar methods – i.e. similarly disguising their real intention – they asked whether or not the adoption of Roma children could be arranged.

The press – here including various electronic media – broadcast visual and sound reports of the results of the ”testing”, on the basis of which the following can be established:

· the employees of the guardianship offices or regional child protection services are aware that affiliation to the Gypsy minority is a sensitive item of data, and even know that the Minorities Ombudsman has previously inspected such cases;

· in practice they surmount data protection problems by preparing a record of Roma and non-Roma children (on the basis of external features, notably of skin colour) containing the information of whether a child is ”creole”-skinned or fair-skinned;

· the employee addressed also recognised that ”there is almost no child of which they can guarantee that it’s not … Roma”;

· in every case formal or informal statements of parents are taken into account; otherwise, however, information is received from the social worker involved on the question of ethnic affiliation;

· information related to ethnic affiliation is based purely on the personal experiences of the child protection authorities or on their suppositions; there are no ”statistics of origin”, though they presume that it would probably be possible to select from national records Gypsy children who had ”been turned down several times” by potential adoptive parents.

We initiated an investigation in connection with the case, and requested the participation of the Data Protection Commissioner and the Ministry of Youth, Family, Social Affairs and Equal Opportunities. At the same time we asked - as early as the end of November 2004 – the competent RPC employee to send us, in the interests of a successful investigation, a copy of the cassette and other recordings, which – according to their suppositions – prove the discriminative practice of the child protection services, and to provide us with any further information concerning the case.

In spite of our pressing them on several occasions they did not send us these materials within the time period of this Report being prepared (claiming staff changes). They have, however, made a concrete promise to rectify this omission. The investigation has therefore not yet been concluded. Certain conclusions can, however, already be drawn relating to the case.

2.4. Conclusions

It is an indubitable fact that prejudice and various stereotypes concerning Gypsies also manifest themselves in the sphere of guardianship work, and that such views, not necessarily foreign to childless couples undertaking adoption, make their effect felt in adoption-related cases too.

Generally every request of adoptive parents that has the aim of finding out as much as possible about the child to be adopted into their family is acceptable. Adoptive parents should be particularly aware of the child’s state of health and generally recognisable endowments.

Child protection bodies, therefore, of necessity handle personal – and among these sensitive – items of data, which in general they do not hold back from adoptive parents.

Above we referred to the fact that a problem can be caused by the handling of personal data on the ethnic or religious affiliation of the child (and possibly stemming from the parent who gave the child into state care). For the cited provision of the Child Protection Act states that: ”In the course of the substitute protection of the child … attention must be paid to the child’s national, ethnic and cultural affiliation”. This rule which can unambiguously be deemed peremptory in a literal sense, appears, however, to oppose the basic principle also binding in guardianship cases that in the course of all measures the best interests of the child must be borne in mind, which in the case of children in state care can mean no other than ensuring that the child be accepted into a family.

We do not yet have a concrete attitude on this question to be regarded as final. Nevertheless we are considering, on the pretext of the investigation among other reasons, attempting to have the legal regulations changed subsequent to consultations with the competent Government members. For it is an undeniable fact that in institutes offering state care Roma children are in a disadvantaged position in relation to their non-Roma peers. To phrase it another way: the disadvantaged position of the Roma minority – or the falling into a disadvantaged position – begins even in infancy at the time of being taken into state care.

In connection with this issue, we must point out that we consider it inconsistent with the constitutional principle of human dignity that state office-holders should in any form participate, or even tacitly cooperate in discrimination based on ethnic affiliation. Minority or religious identity – if it can be determined in certain stages of childhood at all – must not form the basis of discrimination, and in particular must not result in the child’s fate being led on a particular inevitable path.

Given that both professionals dealing with child protection and central authorities agree on this question, we are planning for the first half of 2005 the definitive formulation of our proposals in agreed form, which we are likely to make known in the framework of a press conference.

Chapter VI
Minority rights and data protection

1. Minority identity versus data protection?

In the Parliamentary Commissioner’s reports of recent years we recurrently highlighted the problem that minority rights and constitutional fundamental rights connected to the protection of personal data – at least apparently – are in collision with one another. There were even cases of complainants requesting the standpoint of both the Minorities Parliamentary Commissioner and of the Data Protection Parliamentary Commissioner, and attempting to play the resulting opinions (naturally of different approach) off against each other.

From the point of view of our office, this meant no other than attempts being made to sideline the realisation of certain minority rights by claiming real or imagined data protection concerns.

Having drawn a lesson from such cases, we developed a relationship that can be said to be very good with both the first and the second Data Protection Commissioner: we inform each other and hold consultations on cases which concern both minorities and data protection, and where warranted, provide a joint standpoint.[71]

Under section 2 (2) of the Data Protection Act, so-called special data – to be more precise ”special personal data” - is qualified as, ”Personal data … referring to racial origin, or affiliation to a national and ethnic minority”.

The Data Protection Act establishes particular rules – more stringent than in general – for the handling of special data. Of these would like to emphasise the provision based on which – if no law, or other legal norm of appropriate level regulates data handling – it is only possible to treat special data, should the concerned (the ”data subject”) give their written permission. This written permission – also by the provisions of the Data Protection Act – must be of voluntary nature and based on appropriate information. It must be evident from the permission that the data subject unambiguously gives their consent to the data handling.

The creation of these stringent rules took place in the aim of realising the fundamental right connected to the protection of personal data as enshrined in Article 59 of the Constitution, i.e. as a legal guarantee.

The Minorities Act, however, also contains relevant rules as far as national and ethnic affiliation (hereinafter together: minority affiliation) is concerned. For this law – admittedly in a fairly ”sketchy” way – lays down the definition of a minority, and later the special rights (collective and individual rights) accruing to minority communities and members of the minority.

Why can we describe the definition given in the Minorities Act as ”sketchy” or – employing a less critical phrase – as ”generous”?

Generally speaking, it can be said that in the case of most minority groups the assimilation process has advanced to such an extent that – at least according to the current state of affairs – national minorities, as taken in the traditional sense, rarely feel a real need for various public administration procedures (here also including the courts) to be carried out in their mother tongue.

With the creation of the Minorities Act the aim of the legislator, however, was precisely that of (cf. the preamble) ending or at least moderating the assimilation of ethnic groups numerically living in a minority as compared to the rest of the population, in the case of which it is possible to say that like every group in a minority they are in a disadvantaged position in relation to ”majority society”. Thus the rights and allowances ensured by the Minorities Act clearly class this rule of law among legal norms aimed at positive discrimination (levelling of chances) as by Article 70/A (3) of the Constitution.

From a data protection point of view, the provision laid down in section 7 (1) of the Minorities Act is extremely important, according to which, ”The assumption and declaration of the fact that one belongs to a national or ethnic group …is the exclusive and inalienable right of the individual. No-one is obliged to make a statement concerning the issue of which minority one belongs to”.

In line with the provisions cited from the Minorities Act, which are founded on the absolute voluntary nature of admission of minority identity and in general of being of minority, Article 3 (1) of the Framework Convention lays down more exactly that: ”Every person belonging to a national minority shall have the right freely to choose to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights connected to that choice”.

The assumption of minority identity or decision in the question of whether one desires to make use of the individual or collective minority rights ensured by the law is an absolute right – linked to certain natural persons [72] – which may not be restricted by the State.

From a comparison of the Data Protection Act and legal norms relevant from a minority rights point of view, it is clearly shown that the State is not entitled to – particularly without the knowledge and consent of those concerned – to keep a record of citizens belonging to the various minorities. There are naturally exceptions from even this general rule, since public administration, and within this, bodies participating in financial-economic planning require statistical data faithfully revealing the population’s composition.

The Minorities Act – precisely in accordance with this acceptable demand of the state (public administration) – posits in section 6 that, ”It is the right of the citizen belonging to a national or ethnic minority to admit in secret and anonymously during a census to which minority group he/she belongs”.

As is shown from the legal provisions cited, the legislator was very careful in formulation when describing it as a right to state one’s identity during a census, tying to this the guarantees of voluntary admission and anonymity. Nevertheless it is indubitable that truly anonymous data collection would merely have a statistical aim, as well as that of determining state-political objectives to be drawn up by taking these statistics into account. Thus in a direct mode it would not involve the infringement of personal data,[73] even were the law to class this as an imperative.

2. Special problems of the handling of data connected to minority identity – a few illustrative examples

2.1. The data treatment case of an organisation set up expressly for offering support to young Roma

Several complainants turned to us with the grievance that the Public Foundation for the Gypsies in Hungary (hereinafter: Foundation) asked – claiming abuses – for those applying for study scholarships to confirm their data as featured on their original application forms. They should obtain another statement (this time different in content) from the local Gypsy organisation which recommended them, and have their application countersigned by their form teacher or head of school.

On the basis of the documents obtained (the ”confirmation form”, the attached instruction sheet, and the statement of the office director), we established the following:

In the course of processing scholarship applications for the first semester of the 2004/2005 study year the Foundation found indications of abuses, on the basis of which it justifiably supposed that large numbers of non-Roma young persons had submitted study scholarship applications to the Foundation – whilst the invitation for applications had expressly pinpointed Gypsy students. The Foundation filed criminal charges against unknown offenders due to well-founded suspicion of fraud, forgery of private documents, as well as the abetting of these crimes and the perpetration of other crimes. A police inquiry is currently taking place in several counties.

In the view of the situation that had arisen, the Foundation’s Board of Trustees unanimously decided at their sitting on the 19^th November 2004 that applications received would be regarded as valid, but that every applicant would have to repeat their earlier submitted application with the completion of a ”confirmation form”. The recommendation of a Gypsy organisation was requested in such a way that the organisation had to make a statement on the applicant’s affiliation to the local Roma community. There was also a section on the form for the signature of a form teacher or head of school.

According to the Office Director of the Foundation, the countersignature of a form teacher or school head was required since the Foundation had not requested the repeated submission of school reports and school attendance confirmations, although the need for study averages and certified data of the educational establishments concerned was indispensable.

On the other hand, it could be established that the Foundation was in fact in possession of this data, since the previously submitted applications, recognised as valid, contained this very information, i.e. the principle of restriction set down in the Data Protection Act was breached [74].

It could also be established that the possibility for the signature of form teacher and head of school was at the foot of the page, thus their verification also extended to the ethnic affiliation of the applicant, indeed to the verification of the content of the nominating institution’s recommendation, despite the fact that on the basis of the Data Protection Act, the Public Education Act and the Minorities Act they are not entitled to make a statement of this content.

We also drew attention to the fact that the introduction of schools into the application process is only allowed where strictly necessary,[75] since the application contains personal data and also special personal data (though not directly expressed) by means of the unambiguous reference to ethnic affiliation. That is to say: the confirmation of school attendance, the study average achieved and school data could be required from the institution with the restriction that these data be submitted on a separate sheet, on different printed matter from the application form, in order that the student not be forced to admit, and to assume their origin in a sphere not desired.

The procedure carried out by the Public Foundation of Gypsies in Hungary was also unlawful in that minority self-governments were expected to make direct statements regarding the ethnic affiliation of various ”clients”.

Although the Foundation used this procedure due to signs of abuses observed in the course of processing study scholarship applications for the first semester of 2004/2005, i.e. it requested statements from minority self-governments in order for the competition to achieve its real aim of supporting the studies of Roma young persons, it is not permissible to achieve a lawful aim by illegal means or methods.

The provision contained in section 7 (1) of the Minorities Act that the assumption and declaration of the fact that one belongs to a national or ethnic group …is the exclusive and inalienable right of the individual, cited above, allowed for the possibility of the abuses, since, according to the current regulations, there are no external, objective criteria, aspects or measurable elements of national and ethnic affiliation. There is no possibility of ”controlling” a statement made on the question of an individual person’s admission of identity.

The Foundation asked for the recommendation of Gypsy minority self-governments with the object of ”sealing the legal loophole”. The problem here is that these bodies (as is no one else) are not entitled to provide ”confirmation of origin”. In general terms, statements of recommendation – without direct confirmation of ethnic affiliation – can, however, have their place since it can be presumed that an organisation set up on a national and ethnic basis only supports the members of the community concerned. Such a recommendation could be assessed as subsidiary, as an indirect confirmation of origin, which is not unlawful, but which could nevertheless play a part in allowing those persons to receive scholarships whom the announcer of the competition wished to support.

We draw the attention of the President of the Foundation’s Board of Trustees to the fact that a confirmation of identity based on external criteria can not be required of anybody, but that it is possible to request that the applicant make a statement regarding their ethnic affiliation. Since the aim of minority competition programmes is that those belonging to minorities be supported and that participation in the competitions is voluntary, it can be expected of the applicant that they assume, and declare their affiliation, not before the public but before the judging body, in the course of making an application for such a programme. If the data handler abides by the rules on data treatment and data security, i.e. keeping in mind the principle that data treatment be restricted to aim, only treats the data to the degree and for the time needed for the realisation of the aim, then it is not contrary to the law to ask an applicant to make a statement about their identity.

2.2. Data treatment ”on the open street”

A newspaper report drew our attention to the practice of how benefits were paid out in a small town. The journalist spoke of ”outrageous discrimination”. According to his claim, local Gypsies were not able to receive their benefits by postal means, whilst others were able to. The Roma citizens were only able to gain access to social support in a humiliating way at the ”shame stand”, waiting ”for hours”, and ”in view of the town” (within the market building).

We asked the town’s notary to provide us with comprehensive information on the case, which revealed that those entitled to social benefits and child protection support could decide at their own discretion, whether they prefer to have their social benefits paid into a current account, to collect them from the supervisory section of the market, or to have the benefits delivered to their home. If somebody does not collect their benefits in the market, they will then be delivered to that person’s home. (A significant number of those receiving benefits decided in favour of standing in a queue in the supervisory section of the market, since this enabled them to receive their benefits a few hours in advance.)

The reply convinced us that the mayor’s office was not guilty of ethnic discrimination in the course of benefits distribution. We found, however, that the benefits procedure to date had been objectionable from an individual rights and data protection point of view, since it was revealed from the dating of the documents sent to us, and from the spoken supplement of the notary, that clients could only have received proper written information for the first time on 26^th March 2004 about the available possibilities.

We drew the attention of the notary to the fact that being on benefits becomes known to the entire public of the market place through standing in line before the supervisory section of the market. Yet on the basis of section 2 (1) of the Data Protection Act the fact of being in social need qualifies as personal data, and under section 81 (1) of the Civil Code as a private secret. Whilst it is true that both laws regard the permission of the concerned as conduct precluding illegality [76], legally restrictive conduct, that can be inferred by a voluntary act, in the given instance by standing in queue, can only be regarded as permission if the entitled has previously received full information about the relevant alternatives.

Certain claims published in the press made it clear that due to the lack of information there were some people who decided on waiting in line before the supervisory section of the market for their benefits because they were unaware of the other options available. We proposed, therefore, to the notary that those entitled to monetary social support be informed each month, at least a week prior to the payment of benefits, in the usual form, of all three means of receiving benefits, delivery areas and times of delivery. We also proposed that a new client entering the monetary benefits support system make a statement as to preferred payment method of the money due.

Our proposals were accepted by the notary.

3. Who is a Gypsy? – Legislative anomalies

Regarding problems of data handling and data protection in a general sense, it can be said that these present themselves differently in the cases of the various (legally recognised) national and ethnic minorities. The aim of the legislator with the creation of both the Data Protection Act and the Minorities Act was to ensure the constitutional fundamental right to the protection of personal data – or as the Constitutional Court interpreted it, the so-called ”right to self-determination of information”. Moreover, both these laws vouch for this basic right with the inclusion of special guarantees for those belonging to a minority.

To put this more simply, it means no other than the guarantee of a right or possibility for natural persons to decide, in accordance with their individual resolve, to conceal or to assume their identity. As with all rights, it can also be said of the right to assumption and acknowledgement of identity (or concealment) that the exercise of the right can to a large extent depend on objective circumstances. The situation in the case of the Roma (Gypsy) minority is particularly ambivalent.

For this ethnic group, as is well known, possesses external distinguishing features, the presence of which from the outset represents a ”natural” limit to the assumption of identity. For several types of answer may be given to the question of ”who is a Gypsy?” If we wish to find the answer on the basis of the provisions of the laws mentioned above, then a person qualifies as belonging to the Roma minority, who in actuality – possibly in compliance with certain procedural rules – declares (or assumes) their affiliation to the Gypsy minority. The realisation of the right, however, to not be treated as belonging to the Roma minority is fairly problematic. For in this case it is primarily ”majority society” that decides about minority affiliation; from a social-psychology point of view a person qualifies as Roma who is placed in this group and treated as such.

The discipline of Sociology gives certain touch-stones as to establishing affiliation to a minority community, however in Hungarian society of present day these are ever less applicable. Sociologists connect the definition of the Roma minority in a sociological sense, tracing back to the community’s history, to way of life, dress, unique habits, and lines of occupation.

One (the other is data protection) of the most frequent counter-arguments to the registration or holding of any kind of records of those belonging to minorities is reference to the past. It is an undeniable fact that the twentieth century was replete with tragedies causing severe physical and mental damage to almost every minority in Hungary. For this reason it is not to be wondered at that belief and trust in state institutes is not over strong. It is precisely for this reason truly important (as the example of countries more successful in this sphere shows) that every official representative of the state do their uttermost for trust to return and for the conviction to develop that these fears are no longer grounded with Hungary now a member of the European Union.

The behaviour of some, therefore, appears somewhat ”self righteous” and hypocritical when in reply, for example, to the question of how many Roma live in the given town or how many people of Gypsy origin are employed at a given work place, the cynical reply comes that ”due to respect for the provisions of the Data Protection Act we can not know the answer”. It gives cause to reflect when, in connection with the reform of minority voting rights, the absolutely non euro-conform, even a little self-righteous counter-argument is heard that minorities are afraid of changes that would be brought about by the reform, whilst no action is taken for these fears to be dispelled. We are therefore left with census data (which can be described as ”lacking in precision”) or fundamentally estimate-based methods drawn up by sociologists.

Without wishing to detract from any one’s rights in regard to personal data, the applicability of the model delineated below could provide a subject for consideration.

In our opinion, it would not infringe the right to self-determination of information if any member of a minority or community qualifying as a minority, either with the aim of exercise of rights or in the interests of equal opportunities aims specified by the State or local governments being met, should make reference to their minority being.

Nor would we find it incompatible with the provisions laid down in Article 59 of the Constitution if the law in the case of the mentioned voluntary exercise of rights – in particular, for example, the claim to minority education, the initiation of minority self-government elections, or undertaking of public law roles [77] – would presume that the data subject had given permission for the handling of their special personal data.

This presumption of the law would not exclude the consistent realisation of the principle of restriction to aim, and would at least partially banish superfluous bureaucracy from certain procedures and – in our opinion – would introduce legal regulations more applicable and suitable to current social relations.

Chapter VII
Employment discrimination and rules of the Equal Treatment Act

It is a well-known fact that procedures of authorities or of the courts are commenced in only a slight proportion of employment discrimination cases, whilst the bulk of offences do not come to light. Employees namely fear that their future employment chances will be harmed if they take a stance against an employer’s discriminative decision.

To this can be ascribed the fact that we have received relatively few work-related cases in the past years. Grievances were characteristically raised concerning discrimination experienced during application procedures. We received significantly fewer complaints related to unlawful dismissal. Requests for discrimination to be investigated originated almost exclusively from Roma complainants.

In the past year the number of employment-related complaints rose by almost 30%. The character of offences reported also changed, and the proportion of those complaining of discriminative dismissal rose. Our experience suggests that it has become ever more widely known that the Hungarian legal system forbids adverse discrimination. Newscasts addressing the draft work and adoption of the Equal Treatment Act in all certainty contributed to the development of legal awareness. A significant number of employees, however, are still not aware of what forums of legal redress they can turn too in the instance of discrimination.[78]

In the sphere of employment law, there were rules which would have made possible effective action against discrimination even before the enactment of the Equal Treatment Act.[79] In the interpretation of these, however, dispensation of justice of an approach different from in other employment-related legal disputes would have been required.

In the 2000 report on our activities we reported the case of one of our complainants, who turned to the employment courts because she claimed not to have been employed for an advertised job of chambermaid due to her Roma origin. The courts of the first and second instance rejected her claim, thus the Legal Defence Bureau for National and Ethnic Minorities submitted a plea for reconsideration. The Supreme Court granted the motion and rescinded the judgement at law, as well as ordering the court of first appeal to bring a new trial and a new ruling.

The Supreme Court could not directly employ the provisions of the Equal Treatment Act since it had to investigate the lawfulness of court proceedings conducted in an earlier legislative environment. There was no obstacle, however, to interpreting the provisions of the Labour Code in line with the provisions of the Equal Treatment Act which had since come into force. The Supreme Court thus drew the conclusion that the courts had employed the regulations incorrectly when sharing the burden of proof and establishing the plaintiff’s burden of proof with respect to conversations held with the employer. In the view of the Supreme Court, ”Pursuant to the inversion of the burden of proof it is sufficient if the party citing legal injury proves that they suffered disadvantage, following this the other party must exculpate themselves, and prove that they observed the requirement of equal treatment. The failure to do so must be understood as imputing liability. In the course of assessing the proof in its entirety, the substantial excuse of the employer can be accepted by the court”. [80]

By setting forth a few cases, we would like to demonstrate how the burden of proof inversion is applied in practice.

A Roma complainant worked as a surgical nurse in a hospital yet was dismissed from her post as public servant within the job’s trial period. In her opinion the only cause of the dismissal could have been that her colleagues were prejudiced against her. She corroborated her claim with the report that the head surgical nurse had said the following to her: ”Have you ever seen a bow before? You have to insert the thread into the instrument like into a bow.”

The complainant viewed this comment as an allusion to her Gypsy origin.

In the course of the investigation the hospital had to prove that it had adhered to the requirement of equal treatment. The director-general of the hospital informed us that the reasons for the dismissal of immediate effect during the trial period were exclusively in connection with her work. The complainant was not suitable to discharge the tasks of a surgical nurse due to her lack of professional experience, as well as lack of aptitude and inability to adapt to the work environment. Three other surgical assistants of Roma origin were employed in the ward. They, however, had never suffered discrimination due to their background. The director-general rejected the allegation that the comment cited above was a hint to Roma origin. According to his statement, in surgical practice they call the ”bowstring technique” a special way of inserting thread into the given handheld instrument. The head surgical nurse made mention of this insertion technique during an operation. The hospital sent us a technical information sheet on this technique.

The hospital satisfied its duty of proof with this exposition of affairs. We did not establish violation of the equal treatment requirement in this case.

Pursuant to Government Decree 1001/2004. (I.8.), large-scale staff cuts are being carried out at MÁV Rt. (Hungarian State Railway Ltd.). One regional union of the Railway Workers Free Trade Union complained of the way in which the measures were carried out. According to the complaint a section of the workers on one stretch of railway were transferred to an LLC (Limited Liability Company). All Roma employees ended up in this group, whilst certain non-Roma maintenance workers remained in the employment of MÁV Ltd. despite their shorter period of service and lack of technical qualifications.

The trade-union sent the complaint to us in the name of the employees, thus in the absence of personal statements on identity we took as fact the claim that the ”redeployment” had affected a significantly higher proportion of Roma maintenance workers than of non-Roma workers. In the course of the procedure we examined, therefore, whether or not this disproportion had any reasonable cause connected with the completion of the work involved.

At our request, we were informed by MÁV Ltd. that the reorganisation had affected 36.7% of the maintenance work force on the given stretch of track, i.e. 11 persons. According to the reply, ”There is no disproportion in terms of technical qualifications and period of service of those transferred and those remaining…rather than origin, it was expertise and work capacity that were dominating factors in the selection.”

In the view of MÁV Ltd.: ”The exerciser of employer rights observed their obligations set down in law. Decisions free from discrimination were made in the course of the redeployment”.

A list of maintenance workers on the stretch of track was attached to the letter of reply. The table included names, date of birth, school qualification, technical qualifications, railway technical qualifications, time of entering into service and position of employees. Having reviewed the table, we established the following:

Of the 19 persons remaining in the work force, 5 persons were in possession of a general certificate of secondary education. Among them four had been employed for a decade, one track worker had been employed since March 2002. The majority of the 13 other employed skilled labourers were qualified as fitters or plumbers. Among those remaining, however, there were also two employees who possessed qualifications as cattle breeder and furniture joiner respectively, and had been employed for a relatively short time since March 2002 and November 2002.

Of the 11 transferred employees, 5 track workers had a general certificate of secondary education. Among them one worker had been employed since 1998, the others had been employed for a decade. Of the 5 technical workers taken on by the LLC, three were fitters or had technical training in machine repair, whilst one was a car mechanic by original trade, and one a plumber. All had been employed for several years and some had been employed by MÁV Ltd. since 1994.

Of the transferred employees and those remaining in the work force, one in each group had a technical railway college qualification in railway.

Thus, a section of the redeployed employees were in possession of technical qualifications which it may be presumed would have been of use in the course of carrying out their sphere of work. Of those maintenance workers redeployed to the LLC, several had been employed for longer than those whom the MÁV Ltd. wished to keep in its employment. These facts drew into question the reliability of the statement that the selection criteria were technical knowledge and length of time in service. For it is difficult to believe that a track worker barely employed for two years and qualified as a furniture joiner or cattle breeder could possess greater technical knowledge than a machine fitter with a decade of experience.

In the reply given by MÁV Ltd. it could also be read that at the time of making the decision ”work capacity was a dominating factor”. It may be presumed that they were referring to the fact that they wished to keep workers able to cope with a larger volume of work in their employment. Employers naturally have the right also to take this criterion into account, and even to rank employees on this basis. This kind of intangible reason based on subjective considerations can, however, also serve to mask discrimination.

The rules of proof of the Equal Treatment Act serve the protection of employee rights, and avoidance of difficulties of proof. In view of these, the employer should have referred to facts and circumstances verifying that there was a rational reason for the differentiation in direct connection with the given legal relation. MÁV Ltd. did not provide a satisfactory answer to the question of why Roma employees were transferred in such a high proportion to the LLC if origin were not a criterion.

Thus on the basis of the data available to us, there was still a suspicion that in the course of the restructuring, the right of Roma employees to freedom from discrimination had been violated. We proposed to the management of MÁV Ltd. that they review their staffing decision concerning employees (maintenance workers) on this stretch of railway in the interests of the equal treatment requirement being realised. MÁV Ltd. rejected our initiative, yet still could not provide rational reasons in explanation of its measures.[81]

Having received indications from other counties in the country that MÁV Ltd. acts discriminatively in the course of work force reduction we found it warranted to draw the matter to the attention of the relevant ministries. The drawing up of the work force reduction programme of MÁV Ltd. for 2004 and the settling of the composition of the group of employees to be laid off detailed according to age-group, gender, educational level and regional distribution belonged to the competences of the Ministry of Economy and Transport. We asked the leader of the Department – cooperating with the Ministers responsible for ensuring equal treatment and for employment policy – to take the necessary measures in order for the requirement of equal treatment not to be violated during this series of measures. The Ministry forwarded our request to the leaders of MÁV Ltd. with the recommendation that the principles laid down in the Equal Treatment Act be taken fully into consideration in the course of the work force cuts.

The examples displayed illustrate well that the inversion of burden of proof effectively promotes the uncovering of employment discrimination.

In the majority of employment cases received, however, we have no possibility to commence an investigation since the employer does not qualify as an authority or public service provider. Until now we have sent such complaints to the regionally competent employment inspectorate. In 2005, however, the range of institutions entitled to take action against employment discrimination will be extended, since the Equal Treatment Authority will begin its operation. This makes it necessary for us to review together with these organisations the means of dealing with employment complaints and to develop procedural rules for serving the interests of complainants as effectively as possible.

Chapter VIII
The realisation of minority rights in the work of law enforcement bodies

1. General links between minority rights and the jurisdiction

For years the Parliamentary Commissioner for National and Ethnic Minority Rights has received complaints that can in a wider sense be connected with the state of Hungary’s home penal jurisdiction or specifically with the procedures of certain investigative authorities – and recently with ever greater frequency – with events occurring in penal institutions under detention circumstances.

These complaints – according to their subject and character of the authority concerned – can essentially be divided into three groups:

1.1. The phenomenon of ”unjust sentencing”

In the first group belong complainants raising a grievance either of the fact of penal proceedings being initiated against them, of the sentence brought, or of the severity of the punishment imposed by the judiciary. In such cases the Ombudsman – other than providing the complainant with the necessary information (often detailed briefing) – is unable to take significant measures. (Nor was the situation altered by the adoption on December 20^th 2001 of the amendment to the Ombudsman Act, which, by supplementing it with a so called ”negative competences rule” made more precise section 29 outlining the competences of the Parliamentary Commissioners.)

Complainants objecting to having been wrongfully or unjustly called to account and sentenced usually base their complaints on the hypothesis that the authority dealing with their case – including the prosecution service and the judiciary – was not duly impartial; indeed more often than not the suspicion of prejudice is also expressed. In such instances, section 19 (3) of the Ombudsman Act serves as the basis for our procedures. This means that we refer complaints on matters beyond our competences to the body possessing the relevant competence, whilst concurrently informing the submitter of the complaint. (This implicitly means that we send submissions in which complainants refer to their innocence or other violations, procedural errors etc. to the court that dealt with or is dealing with the case. Should a final judgement have been brought in a case, however, we forward complaints to the President of the National Judicial Council.)

If the criminal procedure has not yet reached the phase of accusation, we can in principle (or rather we could) investigate to effect whether an irregularity related to constitutional rights took place during procedures or in connection with the commencement of procedures so as to demand the measures of an ombudsman. In general, however, we can say of such instances that our office (i.e. the Parliamentary Commissioner) does not possess licences even comparable to those of the investigating authority based on which our office would be able to come to a decision on the reasonable suspicion of a criminal act. The means of proof available in the ”arsenal” of the investigating authorities do not lie at our disposal. Thus in such instances we generally follow the procedure of drawing the attention of the prosecutor (chief county prosecutor) supervising the investigation to the circumstances relayed by our complainant, and request that they apply their use of their supervisory licenses granted by the law. We also ask that they inform us of their opinion. (In practice this has proved a very useful and satisfactory method: for the concern can not be raised with regard to our procedures that the independence of the jurisdiction has been infringed or influenced, whilst a proper reply is given as to the reasonableness or groundlessness of the suspicion raised by the complainant (and forwarded by us).[82]

1.2. Police atrocities and prejudices of law enforcement bodies. Complaints submitted about police procedures.

In this - the second group - belong those complaints in which persons drawn into various procedures complain that high-handed, coarse, ill-mannered, and rude police action towards them (i.e. behaviour in violation of their human dignity) could be linked to their ethnic affiliation.

In accordance with the experiences of various legal defence institutions – above all those of the Legal Defence Bureau for National and Ethnic Minorities (NEKI), and of Amnesty International – the fact can unfortunately not be ruled out that the nature and ”refinement” of police measures may depend to no small degree on the ”target audience”. For in several instances police officers – but also the staff of other law enforcement institutions – are inclined to use a ”simplified” style with Roma, young people and the homeless alike. This is externally manifested by speaking down to those concerned (using the informal ”you”) and in general the adoption of a ”brusque” manner scarcely in line with the provisions of the Service Regulations.[83]

Recurrent experiences of several years verify that the sections of the Parliamentary Commissioner’s reports dealing with the ”bodies of force” are followed with increased attention by the press, legal defence institutions and Members of Parliament. This is hardly surprising since truly the most flagrant form of discrimination is that expressed not only in a forcible way, but also by officials in the employment of the state.

Weighing the balance of the 15 years that have passed since the democratic transformation, we have to conclude that a relationship of trust such as deemed desirable in a constitutional state has yet to develop between police and citizens or has not yet taken root to the extent that prejudice and ethnic discrimination not be suspected – unfortunately from time to time not without foundation – behind certain police measures.

To summarise our experiences related to the police and other law enforcement institutions, we can infer that in the years to follow as in 2004, we shall most probably have to investigate cases where the organisation or institution against which the complaint has been lodged is an armed body.[84]

As an illustration of such cases we shall set forth a few cases in this chapter under a separate heading which are instructive or about which – due to publicity stirred up by the press – the reader of the Report may be rightly curious.[85]

During the past year as previously, we often found that being held in custody was the cause of complaints about police procedures, although ordering someone to be committed to detention belongs to the competences of the judiciary. We inform all complainants with due thoroughness of the limits to the measures that may be taken by the Parliamentary Commissioner, as well as of the possibilities of legal redress.

A complainant put forward the opinion by letter that the circumstances of his son’s death had not been investigated with due thoroughness, and that this could be ascribed to the Gypsy origin of his son.

The son of the complainant died in a traffic incident caused by the driver of another (passenger) car. The police office informed the complainant of the summary offences resolution that had been brought, according to which the procedure commenced against the complainant’s death concerning a summary offence had been discontinued due to the death of the subject of the procedure. From the justification given it is revealed that the deceased was illegally residing in the locality at the time in question and that the driver of the car which had collided with him had not broken the rules of the Highway Code and could not be called to account for the accident. The complainant raised the objection that the resolution had not been sent to him as a matter of course, but that he had only received it by request and in the form of a photocopy. The complaint submitted about the resolution did not receive a reply. According to information given in connection with the unusual death by the competent police office staff member, no other procedures were carried out apart from the aforementioned offences procedure and it was only the procedure investigating the summary offence allegedly committed earlier by the deceased that formed the basis for all authority measures taken. We sent the case to the competent chief prosecutor. Based on an inspection of police documents the chief prosecution office established that the police office had uncovered the circumstances of the traffic accident that lead to the death of the complainant’s son with due thoroughness by having carried out an investigation both in the course of their visit to the scene and subsequently. The chief prosecution office also established that whereas the police office did indeed carry out an inquiry into the unusual death, they subsequently wrongly designated the case an offences case. The adverse result of the procedural breach was revealed by the fact that – contrary to the provisions of the GSAP, according to which procedures aimed at investigating unusual deaths must be concluded by a resolution to be delivered to a member of kin living in a joint household with the deceased, or in the absence of such to the nearest known relative – the procedure was not concluded with a resolution and consequently was not delivered to the aforementioned complainant as member of kin of the deceased. The chief prosecution office also took measures in order to remedy omissions and to ensure that attention be paid in the future to formal statutory rules. In the course of the investigation no information emerged to suggest that the origin of the complainant’s son would have influenced the investigation into the circumstances of his death.

In those instances where complaints were brought of mistreatment perpetrated by members of the police, we referred the case to the competent chief prosecutor. The heads of the chief prosecution offices carried out the measures stipulated by the Criminal Procedures Act and provided detailed information of these measures.

A complainant addressed by letter the Parliamentary Commissioner for National and Ethnic Minority Rights in order to make a complaint against a local police officer because he had been pestering his son over a long period of time and demanding to see his identification card. Thus the complainant’s son sought out the head of the local police station to make a complaint for the aforementioned reasons. While waiting there he encountered the police officer concerned, who called him a ”filthy Gypsy” in the presence of other police officers and threatened to shoot him in the head.

We requested that the head of the county police headquarters provide us with information about the case. The officer in command took a police record of the statement made by the injured party, and sent the documents to the police office. The police superintendent informed the head of the county prosecution investigative office, who declared that reasonable suspicion of a criminal act could not be established, and that it would be expedient to investigate the matter in the framework of a disciplinary procedure. In the course of the disciplinary procedure persons present in the police station building at the time were heard, who unanimously claimed that the charged police officer had directed offensive and rude comments at the son of the complainant. The young man declared that the comments spoken had been derogatory to his person, and that the circumstance that they had been made by a police officer entitled to bear a weapon in a location of police service had also struck fear in him. He stated, however, that he would not file a request for prosecution on the grounds of defamation. The police officer, on being heard in the course of the procedure, admitted that offensive and threatening comments had been made by him. He stated that the deed had not been motivated by the minority identity of the complainant’s son. The police superintendent initiated a meeting between the police station chief, the mayor, the notary and the local Gypsy minority self-government. In the course of the discussion they clarified that the police officer did not have a troubled relationship with the local Roma minority, and that a unique case was in question, namely a personal conflict between the charged police officer and the plaintiff. This was supported by the fact that the two parties had had a relationship going back several years that could be described as that of good friends. The disciplinary procedure established that the police officer committed a breach of section 2 (1) of the XXXIV act on the Police,[86] section 5 of Decree 3/1995 BM on Police Service Regulations [87] and that his action could also be established as fitting section 151 (1) a) of Act LXIX of 1999 on Offences [88] under the offence of aggravated threat.

In view of the fact that the perpetration of this offence leads to procedures being conducted which belong to the competences of the judiciary, the exerciser of disciplinary competences consulted with the trial judge of the town court. They assessed the facts established in the course of the disciplinary procedure and as a result drew the conclusion that the comments of the police officer had lent themselves to provoking fear in the person threatened, and that the conduct of the perpetrator allowed for the offence of aggravated threat to be established. Taking into account the fact that the offence was carried out by a professional member of the police force in a place of service, under section 119 (2) of the XLIII Act [89] of 1996 on the Conditions of Service for Members of the Regular Armed Forces – in view of section 30 (1) of the Offences Act [90] – the action should be judged within the framework of a disciplinary procedure.

Prior to the conclusion of the disciplinary procedure, we again showed the documents of the case to the head of the prosecution investigative office, who having studied the documents announced that criminal proceedings would not be initiated since a criminal act had not occurred.

Due to the perpetration of aggravated threat as an offence, the head of the police office on the basis of section 123 (1) c) of the Conditions of Service for Members of the Regular Armed Forces Act, sentenced the police officer to paying a significant fine. In determining the punishment it was deemed a mitigating circumstance that the police officer, regretting his action, had made a full confession. It was held an aggravating circumstance, however, that the deed could negatively influence the estimation of the police both among local residents and the local Roma community.

Country-wide interest was provoked by a news report that in the course of police measures on the Hungarian Plain a 19 year old young man lost his life. The circumstance initially not featuring in the news report that the deceased was of Gypsy origin turned the event within a few days into a unique ”minority affair”. Due to the aforementioned we followed the inquiry with increased attention.

The deceased’s relatives and legal representatives on the basis of the relatives’ statements expressed the suspicion that police measures had been wrongful and that the ensuing result could be connected with the otherwise seemingly irrelevant information of his origin. In view of this – though the authority procedure was in due progress – we ordered an investigation and requested detailed information from the county chief prosecutor. Our colleagues also conducted discussions with members of the local Gypsy minority self-government, the competent leader of the police office, the deputy county chief prosecutor and the head of the prosecution investigating office conducting the procedures.

The death occurred on July 25^th, ”primary” measures were carried out partly by the Police Investigative Body, but the Prosecution Investigator was present at the scene itself and on the following day ordered an inquiry in view of the fact that the death had occurred in the course of police measures. The established facts of the case are the following:

On the aforementioned day in the early hours of the evening a subordinate of the local police office was shopping in a large department store off-duty and in civil clothing. There he noticed R. J., against whom several current warrants for arrest were ordered. R.J. noticed and recognised the police officer, was aware of his police status and therefore hurried to escape. The police officer placed himself on duty through display of his identification and loudly addressed the young man. He wished to seize R.J. in order to present him at the police office. At close distance, seizing him from behind he managed to get hold of R.J. but the brother of the young man intervened and assisted the flight of his younger brother. This capture and intervention was repeated several times, until finally the capture of R.J. succeeded on the sandy, weed-grown area behind the store through the assistance of two off-duty police colleagues. Applying bodily force they removed R.J.’s brother from the vicinity.

R.J., who had already been forced to the ground by the police officer, continually straining himself over a period of five minutes attempted to escape from the police officer’s grip when his body suddenly went limp. Noticing R.J.’s indisposition, the police man informed the ambulance service who attempted to assist the young man with water and artificial respiration. The ambulance service’s attempts at resuscitation lasting approx. 20 minutes were not of any effect, and the ambulance doctor established the fact of the young man’s death.

At the scene of the death and subsequently in the course of the investigation, the relatives of the deceased claimed that the police officer while holding the deceased to the ground had pressed his face into the sand, and thus that his death had occurred as a consequence of asphyxiation.

The autopsy carried out by an expert judicial doctor discovered superficial wounds in several places on the deceased’s body. The internal examination similarly revealed minor haemorrhages and other wounds which, however, were healable within eight days and beyond all doubt could not be brought into causal connection with the deceased’s death. They could have come about in the course of the flight-pursuit and scuffle described above. The expert indicated the cause of death to be an existing heart problem of long duration, and stated that the death occurred from natural causes due to cardiac failure originating in a heart muscle complaint. The expert also investigated the question of possible inhalation of sand and suffocation in the sand. He established that there was no more sand in the respiratory tracts than would enter from the tongue during attempts at resuscitation or through breathing during a struggle on dusty, sandy, ground. This, however, could not be the basis of death by suffocation. The witness statements of third parties also corroborated this expert opinion.

The expert therefore established that the death of the injured party occurred as a consequence of incurable cardiac trouble and not in causal connection with police action, though it was presumable that the sudden increased physical and psychical burden accompanying the police action could have put forward the time of death.

It was therefore necessary to investigate whether or not any one could be held responsible for the fact of death, and whether a wilful or negligent offence could be established in connection with the police action.

It was possible to rule out wilful manslaughter due to the lack of connection between intention, the conduct of the perpetrator and the result of death.

The breach of employment rules is necessary for endangerment causing death committed within the sphere of occupation to qualify as a crime, however according to the findings of the investigator the conduct of the police man could be deemed to be of the necessary degree for arrest, and thus proportionate. It was not, therefore, possible to establish an occupational offence.

Ultimately a person commits a criminal act by neglect if the given person foresees the possible consequences of their behaviour, but rashly trusts that these will fail to come about, or who does not foresee the consequences due to neglect of the attention or circumspection that can be expected of them. According to the information of the investigator at the time of action, the police officer did not know and could not have known of R.J.’s illness, since neither the deceased, the relatives of the deceased, nor, and which is also of prime importance, was his general practitioner aware of this illness.

In view of the fact that the death of the young man occurred as a result of a incurable illness not to be brought into causal connection with the police action, for which nobody was found criminally responsible, the inquiry had to be discontinued.

The prosecutor general rejected the complaint brought against the resolution discontinuing the trial.

The lawyers authorised by the deceased’s family submitted a supplementary private prosecution. The court has not yet ruled on the case. The investigation did not confirm the allegation that the police action was connected with R.J.’s origin.

1.3. Complaints received from detention institutions

Included in this sphere of clients are complainants serving enforceable non-appealable terms of imprisonment in one of the country’s detention facilities.

In reports of previous years we have already written about the fact that it is often characteristic of complaints received that they are a final ”plea for help”, when the convicted, having exhausted numerous authority forums (police, prosecution, courts), attempts to prove their innocence or enforce the necessity for mitigation of their penalty by the help of the Parliamentary Commissioner.

As was mentioned above, in cases qualifying as ”res iudicata”, i.e. in cases where the court has brought a final ruling, the Parliamentary Commissioner can only undertake a mediatory role: he may forward (where warranted supplemented with our opinion) circumstances and evidence revealed at a later stage by the convicted and potentially giving cause for a re-trial to the President of the National Judicial Council. The courts do not have any obligation to inform or notify us, thus we are without knowledge of the future fate of the various complainants.

Deserving of attention, however, are complaints arising in connection with certain measures and decision making procedures of detention institutions.

It is clear – though in certain cases not entirely unambiguous and self-explanatory – that it is primarily complainants connecting problems arising from their conviction or detention with their identity and prejudices manifested against them who turn to the Parliamentary Commissioner for National and Ethnic Rights.

Convicted persons from the Gypsy minority often complain of problems encountered in maintaining connection with their close relatives (wife, siblings, children etc.). The so-called ”visiting right” is familiar in penal law. It is an undeniable fact that the travel of a large multiply disadvantaged family living in poverty would entail unviable costs for the relatives of the convicted. For this reason alone – in addition to other humanitarian factors – it should be considered whether the location of the execution of sentence be designated in a settlement close or far from the family home of the concerned.

On the basis of the current regulations the convicted have the possibility in certain instances to request leave, temporary release, or interruption of sentence. In addition they may also present a petition for their sentence to be served in an institute closer by (to the home of their relatives).[91] In the case of rejection or disregard of such pleas – when we in fact found the pleas of the convicted to be well-founded and acceptable - we more than once intervened with the National Commander of Prison Administration in the interests of the case of the convicted receiving a favourable judgement.

We must acknowledge with satisfaction that the colleagues of the National Command of Prison Administration and above all the Commander himself displayed exemplary cooperation and flexibility in these cases: for this reason we succeeded in mitigating numerous human fates overshadowed by individual tragedies.

As a conclusion to this chapter – before we turn to a presentation of certain typical police and law enforcement cases – we must also relay as a fact that the number of complaints arising from the various law enforcement cases rose by 66% in 2004 compared with earlier years.

The statistical data – in our opinion – speaks for itself. The Minorities Ombudsman has not just the right but also the obligation to concern himself with the particular problems of the sphere of complainants.

Among the real causes of the outbreak of complaints a large role is played by, for example, overcrowding, which can contribute to conflicts and tensions developing between detainees and staff, leading to undesirable altercations and consequently to the emergence of various complaints. Secondly, investigations on the spot carried out by our colleagues and personal discussions with the convicted helped our ”legal defence activity” to become known among those serving terms of imprisonment, with the effect that ever more addressed us by letter.

Many of those raising complaints request legal support from us. In such instances we ask for the help of the county representative of the Anti-Discrimination Service run by the Ministry of Justice. The task of the lawyers working in this Network is the running of a legal help service expressly comprising cases in which clients suffered legal wrongs due to their Gypsy origin. In the framework of this Network, lawyers give legal advice and provide representation before the court, all free of charge.

The complaint of one detainee contained a request for another defence lawyer, since he thought that the lawyer he had been appointed was not attending to his defence satisfactorily, and that he could suffer disadvantage due to Roma origin in the course of the criminal trial.

We requested that the Network’s county representative represent the client in court, who having examined the documents of the case and examined the minutes of the earlier hearing, became convinced that the complainant had not suffered legal wrongs due to minority origin. It became clear, however, that the earlier defence counsel had not discharged their professional activities satisfactorily. On this basis the court appointed a new defence lawyer.

We would like to present some typical instances from among complaints related to transfer and to detention institute staff.

A letter writer serving a term of imprisonment requested to be transferred to a detention institute closer to his home for visiting purposes. In his complaint he described that he had not seen his family for many months. The officer of the institute had rejected his plea to be transferred for visiting purposes. Due to the illness of his wife, the long distance and difficult circumstances he had no opportunity to meet with his family.

In connection with the placement of those serving terms of imprisonment in detention institutes, there are provisions contained in section 24 of Law Decree 11 of 1979 on the Implementation of Sanctions and Measures (Bv. Codex). According to these, imprisonment is enforced to a degree ruled by the court and designated by the detention institute, as far as possible in a detention institute close to the home of the convicted. Title III of the Bv. Codex contains provisions relating to obligations and rights of the convicted. Within this communication of the convicted with relatives is regulated, according to which the convicted is entitled to:

· correspond with relatives as well as persons designated by the convicted and permitted by the detention institute, the frequency and size of letters is not restricted,

· receive visitors at least once a month

In addition there is the possibility for either the detainee or relative to make a plea for the convicted to be transferred to a detention institute near to their home expressly for visiting purposes.

Based on our request, in accordance with the favourable decision of the National Commander, the detainee was transferred to a detention institute near to his home, where the visiting of relatives was arranged.

One detainee raised the complaint that his plea for interruption of sentence had been rejected – which he had submitted claiming the need to carry out house renovation work.

The resolution brought by the National Command gave as a reason for the rejection the circumstance that according to a study conducted of the detainee’s home environment, several relatives of the complainant would with all probability be able to help in carrying out the urgent work. They also ascertained that the family did not possess the necessary building materials for the renovation. On the basis of all these points, as well as taking into consideration the inability of the convicted to present documents verifying the financing of the work, the plea for interruption of sentence was not warranted according to the Command. The complainant made use of the possibility of appeal, yet his request was not granted by the Political Secretary of the Ministry of Justice either.

Several complaints were received concerning detention facility staff.

One convict made the complaint that he had ”problems” with the staff of the detention institution, since they had several times made derogatory reference to his Gypsy origin and threatened to assault him. He claimed in addition that his instructional officers had taken away his ”privilege” with an unfounded motion.

In connection with the complaint, we addressed the competent county chief prosecutor, who having investigated the case, supplied us with the following information:

The claim of the complainant that his instruction officers had ”deprived him of his privilege with a motion containing untrue facts”, was based on a subjective feeling, given that the investigation ascertained that the motion in regard to his conditional discharge was in every respect factual and included the well-founded opinion of the instruction officer. Following the court hearing on the matter of conditional discharge, the complainant made offensive remarks to the judge and to the female instruction officer on leaving. According to the documents produced as a result of the disciplinary procedure commenced due to his actions it was clear that that the breach of discipline was established on the basis of evidence lawfully procured. (Incidentally the County Court Council brought a final judgement on the case.) The complainant’s claim that the staff of the detention facility had several times made derogatory reference to his Gypsy origin and threatened him with assault could not be proven according to the investigation. In the course of the court martial prosecution investigation initiated on the basis of the complainant’s claim, and conducted and concluded due to the suspicion of assault in official procedures, the perpetration of a crime could not be established.

Over and above this, the chief prosecutor also informed us that the punishment of solitary confinement had again been imposed on the convicted due to disrespectful conduct and that the detention facility had made a proposal for making more severe the degree of the complaint’s sentence.

In another instance a complainant similarly raised the grievance of having been the subject of numerous atrocities on the part of the guards. In his opinion these wrongs were connected to his minority origin. In his complaint he voiced the grievance that the petition form submitted by him on several occasions was always detained in the instruction unit.

In the case of the complainant under preliminary arrest, the head of the detention facility ordered an investigation, on the basis of which the following were established:

At the time of personal hearing the complainant had said that his problems began when he was frequently transferred to different cells without cause within a certain period of time. He interpreted the frequent transfers as an ”attack” against his person. The officer of the detention facility informed us that there had in fact been a need for the frequent transfers, but that the reasons were the following:

The facility carries out differentiated placement of detainees following their admission. Firstly, separation rules stipulated by legal regulations are taken into account, whilst a large part is also played by the differential aspects established by the instruction officers (e.g. degree of relapse, physical endowments, information arising from and available from previous detention, age, possible existent personal conflicts, security category, personality of detainee etc.) The frequent transfer of the detainee was also connected to the fact that his cell mates were afraid of him due to his prison experience and physical endowments. In the course of the transfers the facility primarily had to bear in mind that a threat not be posed to the operation and rules of the facility through the placement of the convicted.

The Commander also informed us that the facility runs on a 160 – 170% use of space. On the basis of all these points, decisions had to be made for several transfers to serve the maximum adherence to separation rules set down by the holder of decisionary powers.

Thus the transfers of the complainant were not of a personal nature, and not in any way connected to his minority origin.

In the course of the hearing the detainee stated that he had experienced several affronts by prison guards, which he interpreted as being expressly directed against him and tied to his origin and past record. In connection with this he did not wish, however, to mention specifics or names of persons. In the course of the hearing he did not indicate new problems, and stated that since having sent his complaint he had not suffered discrimination.

As far as the instructional unit was concerned, the complainant mentioned the problem that his requests for a personal hearing did not reach the institution’s command. Following this, the detainee added that he had been heard several times by the institution’s governor, deputy governor, chief of detainment cases, and instructional officer. This statement therefore contradicted the assertion that such requests were not forwarded.

On being requested several times, the complainant was still unwilling to corroborate the affronts in detail with naming of persons and indication of times, thus on the basis of information given by the detention institution’s governor it was not possible to prove the reality of the complaints featuring in the complaint. In spite of this the governor of the institution instructed the heads of the facility’s specialist units to proceed with greater circumspection and attention in cases involving the complainant. He also drew the attention of the staff to adherence to the rules of treatment laid down by regulations, and to the prohibition on every type of discrimination.

[1] Both the Committee on Human Rights, Minority and Religious Affairs and the Committee on Local Governments unanimously voted the bill suitable for a general debate. This decision was also brought by a strong majority in the other committees. Despite this, the bill was discussed in only one plenary session in the framework of approx. 2 hours.

[2] This sphere of problems shall be discussed in more detail under the next sub-heading of the Report.

[3] Minority public affair: affair connected with the discharge of specified public services for members of the minority in the interests of the realisation of individual and community rights granted by this Bill and the voicing of minority interests (particularly the realisation and preservation of minority cultural autonomy by minority self-governments), the independent management of these and the creation of necessary organisational, human and material conditions. Affair connected with minority representation on state and local self-government bodies exercising public authority as well as on minority self-government bodies, and the provision of organisational, human and material conditions for these.

[4] In this instance the public administration office holds a consultation between those participating in the agreement, and if accord can not be reached within 30 days, acts within its powers of legality audit.

[5] In this instance appropriate application of the provisions of Act LIII of 1994 on Judicial Execution would mean that local governments would be obliged to pay the monetary equivalent of use of premises (i.e. the cost of premises rented by the minority self-government from another proprietor, or a proportion of this cost as ruled by the judiciary).

[6] One constitutional guarantee of self-governance is that only statutes are able to stipulate compulsory tasks for local governments, whereby the conditions required for the task to be executed must also be ensured. In this instance, the Minorities Act contains the compulsory task. There is also a need, however, for the framing of a decree by the Ministry of the Interior in the interests of the task’s execution.

[7] The Minorities Act defines metropolitan minority self-governments not as regional, but as local minority self-governments.

[8] In general we do not display the names of settlements in parliamentary reports. The reason why we have made an exception in the case of Csabaszabadi is that its representative body – in spite of our initiatives, recommendations, or legality opinions of the public administration office – has consciously ignored over the course of several election cycles the minority rights enshrined in the law. We have already addressed their uncovered violations anonymously in several reports, thus we consider it warranted to make public the name of the settlement (making use of the possibility offered by s. 26 of the LIX Act of 1993 on the Ombudsman for Civil Rights).

[9] We proposed the annulment of the provision according to which, ”All those entitled to vote for municipal government representatives may participate in local minority self-government elections in the given settlement”.

[10] We agreed, however, with the suggestion that it is not warranted to lay down such strict conditions for voters as for candidates since the undertaking of different public law roles is in question.

[11] The Constitutional Court in resolution 59/2003 (XI.26.) declared that: ”An unconstitutional situation arose as a consequence of the Parliament not granting the procedural guarantees of communication stipulated by s. 79 (2) of the C Act of 1997 on Election Procedures, whereby the conditions for the exercise of the right to legal remedy – within the deadline specified by s. 78 (1) – were not ensured”.

[12] According to a 2004 survey, almost 17.2% of the Hungarian population has an internet connection at home. The proportion of those using the internet more or less regularly among those aged over 14 was approx. 28.4%. While we do not have figures for the spread of fax machines, it is clear that access to these can not be regarded as standard.

[13] Minority self-governments may not have the powers of an authority and may not carry out tasks connected with ”public utility services”.

[14] This rejection is incomprehensible given that the representative enjoyed strong support in the settlement: in the most recent local government election he won a mandate on the representative body with the second highest number of votes and was also voted member of the Gypsy minority self-government. He worked for six years at the Family Support Services, and is therefore familiar with the situation and problems of the Roma community. Several years ago he passed examinations at Advanced Level, whilst a committee president not in possession of a secondary level qualification was selected previously in the settlement.

[15] The presence of the notary would be warranted also for the reason that under the Local Governments Act it is obligatory to indicate to the body if a breach of law is observed in its decision making.

[16] There is a possibility to use analogy since ss.24 and 63 of the Minorities Act authorise dispensers of justice to do so.

[17] In the absence of exact surveys and statistical data we are unable to provide precise figures, however we would risk the assumption that there are few employees in state administration, the judiciary, or the prosecution service, who would be able to grant clients a hearing in Armenian or Modern Greek – languages not employing the Latin alphabet – without recourse to an interpreter.

[18] Language use or the provision of accurate interpreting is of particular importance in these instances since it is necessary to obtain statements from those concerned on a diverse range of questions, and they must also be ensured the right to potentially request right of asylum from the Hungarian Republic. In terms of the preservation of human dignity, respect, and generally use of appropriate treatment, they must be provided the possibility of receiving different treatment as perhaps laid down by their religion, e.g. that of requiring a special diet.

[19] The Charter in, for example, the 9^th Article under the headword of ”Judicial Authorities”, or in the 10^th Article under ”Administration Authorities and Public Services” contains undertakings, for the practical implementation of which – primarily in terms of interpreting, or the issuing of official documents in several languages – neither the subjective, nor objective (above all financial) conditions exist in present-day Hungary.

[20] We would merely like to mention that we even received one complaint, where a court had arranged for the German language mid-trial petition of a German nationality Hungarian citizen to be translated, but had made the client using his mother tongue, pay the translation costs as part of the trial costs. This kind of practice is difficult to classify as the ”encouragement” – in judicial proceedings – of minority language use.

[21] See A polgári perrendtartás magyarázata. Első kötet [Explanation of the Civil Code of Procedures. Volume 1], KJK, Budapest, 1999, p.75.

[22] In the Hungarian Republic everyone is equal before the law and everyone has the right to have accusations brought against him, as well as his rights and duties in legal proceedings, judged in a just, public trial by an independent and impartial court established by law.

[23] In contrast with the other branches, of power the extraordinary quantity of individual and public interest protection measures and the means of interest protection give public administration its stressed social importance: for the basis of its functioning is the lawful and effective realisation of public tasks, and the provision of conditions required for these tasks to be realised. It does so moreover in such a way that – in contrast to judicial power – it not only connects to the judgement of the legal debate affecting the given task as a current passive ”administrator”, but continuously keeps its eye on public affairs, and is the planner, regulator, implementer, operator and controller of these.

[24] See A polgári perrendtartás magyarázata. Első kötet [Explanation of the Civil Code of Procedures. Volume 1], KJK, Budapest, 1999, p.7.

[25] ”If a person whose mother tongue is not Hungarian in the course of proceedings desires to use his mother tongue or a language understood by him, then an interpreter must be employed.”

[26] The summary offence procedure affecting the largest number of foreigners is that of on the spot fines. The virtue of this procedure is that the authority representative – independent of their language skills – provides the foreigner with instructions in German and English of how the fine is to be paid, of the deadline, the legal consequences of not paying, as well as recognition of an offence and the exclusion of legal redress. It would not be a particular burden to the department attending to the given branch of the law if this printed form were to be produced in further world languages in the future.

[27] The following citation – taken from a university thesis - reveals the scale of the linguistic motley that interpreters have to struggle with in entry procedures alone (in just one region): ”The Directorate, since its establishment, has given expulsion orders to (according to citizenship) the citizens of more than fifty countries. The highest number of expulsion orders was implemented regarding Turkish, Moldovan, Serb-Montenegro, and Ukrainian citizens, as well as citizens of Arab and Asian countries, i.e. Egyptian, Algerian, Tunisian, Pakistani, Bangladeshi, Chinese, Vietnamese and most recently Mongolian citizens. Prior to Hungary’s accession to the EU, illegal immigrants from Ecuador and Peru were dealt with in large numbers who had designated Spain and Portugal (mainly because of the language identity) or France and Italy as their target countries. They saw Hungary as their point of access since they were able to enter the country without visa. These persons entered the country by aeroplane with the organisational help of travel agencies, and made attempts at almost means of illegal exit and onward travel. They most frequently intended to travel further by making use of international trains.” Horváth Henrietta: A Belügyminisztérium Bevándorlási és Állampolgársági Hivatal Nyugat-Dunántúli Regionális Igazgatóság Idegenrendészeti Osztályának tevékenysége. [The activity of the Alien Policing Section of the Western Trans-Danubian Directorate of the Ministry of the Interior’s Immigration and Citizenship Office], Budapest, 2004.

[28] In the XCII Act of 2003 on the Rules of Taxation the only information we find on this topic is that the tax authority supplies tax and income certification in Hungarian, confirmation of taxation location in Hungarian or in Hungarian and English at the request of the tax-payer. The tax authority will also provide tax authority confirmation on the form established by the foreign authority if the petitioner attaches to the form a certified translation into Hungarian. The XCIII Act of 1990 on Duties does not contain any procedural rules, it only stipulate the fee for foreign language copies and for foreign language entries in travel documents.

[29] For more detail see Ferenc Dudás: A nemzeti közigazgatás versenyképessége, a személyi állomány, valamint a működés továbbfejlesztése tükrében, különös tekintettel az európai uniós követelményekre. [The competitiveness of national public administration in light of its staff and operational development, with particular attention to European Union requirements], Magyar Közigazgatás, 2004/7.

[30] It must also be realised that following the regime change citizens have emerged from the passive objects of the exercise of public authority and performance of public services to ever more demanding consumers of these, whilst their defencelessness has not decreased (as confirmed by the experiences of the ombudsmen, the prosecution service and civil legal protection bodies. The citizen – apart from the means of political formation of will – today still has little influence over the organisation, costs, choice and quality of services. In short: the voter can not enforce market principles either in terms of power of the state, or financial and intellectual services, i.e. they have no means to change or significantly influence the monopoly of power of state and of public services. On the market a customer may remove their trust from a particular item of goods and select another, they may also inform themselves in detail of the price and quality of goods, but they can not choose another approving authority, and their choice of school or hospital is strictly determined, whilst they have little idea of what the true cost of public services is and what parameters they have to comply with etc.

[31] A provision is lacking from the PAAPSP, for example, according to which the municipal self-government would be obliged to ensure that – if required on the part of the minority self-government – printed matter used in the course of public administration procedures be provided in the mother tongue of the minority too.

[32] The amendment to the Minorities Act currently on the threshold would bring about a significant extension of rights for those who enjoy minority rights. According to the amendment, citizens of member states of the EU with an Hungarian place of residence would be able to enjoy the rights ensured to minorities, as well as persons who have immigrated and settled in Hungary and declare themselves as belonging to one of Hungary’s home minorities. It follows from this that if the amendment were accepted, the PAAPSP would also ensure this extended personal scope the unlimited right to language use. Here we should note that the justification of the PAAPSP refers to the abovementioned provision as an accomplished fact, as an operative rule – clearly because the codifier at the time of writing the justification had faith in the simultaneous adoption of this provision – and though the justification has no direct binding or explanatory force, it can still provide several tens of thousands of administrators and public seeking information on the law with an interpretative handhold. For this reason the responsibility of the legislator can not be sufficiently stressed for the amendment being up-to-date and in line with the positive law legal material.

[33] But who can act as an interpreter? Currently the 241/1986 (VI.26.) MT Decree on Technical Translation and Interpreting is still in force (though as far as we are aware the Ministry of Justice is preparing new statutory legislation on this matter), according to which technical translation or interpreting may be carried out for compensation without an employment contract as a profession by a person in possession of a technical translation or interpreting certificate. A technical translator or interpreter possessing a professional qualification is provided with a technical translation or interpreting certificate by the competent notary of their permanent place of residence. Attested translation, attestation of translations as well as attested foreign language copies – in the absence of a rule of law providing otherwise – can only be provided by the Hungarian Office for Translation and Attestation Company. If, however, the latter does not have an interpreter proficient in the language required and further at courts not located in Budapest, a translator registered with the notary within the regional jurisdiction of the court must be appointed. If an interpreter can not be ensured in this way either then another suitable person must be employed who is proficient in the given language.

[34] On the content and partial licences of EU citizenship see Judit Tóth: Státusjogok (Status Laws), Kisebbségkutatás Könyvek, Budapest, 2004. pp. 289-301.

[35] See provisions contained in paragraphs (1) and (2) of Article 68 of the Constitution.

[36] The preamble to the Minorities Act treats this question in detail.

[37] Article 67 (2) of the Constitution: parents have the right to choose the form of education given to their children.

[38] See s. 46 (1) of the Minorities Act.

[39] See provisions contained in s. 47 (1)-(16) of the Minorities Act.

[40] This is particularly true of those countries where a so-called quota system has been introduced in public education and higher education institutions, i.e. it is determined that a certain proportion of students should belong to minority groups. In these cases, among applicants achieving the same point score and demonstrating the same achievements, those who belong to a minority (ethnic) group enjoy an advantage.

[41] This statement is true in the case of those draft laws crucially affecting minority rights; for as we mention in a separate chapter of this Report, certain ministries included us to such an extent in the governmental codification coordinated system as though we were a link in the public administration chain of consensus. The Health Department, for example, sends every proposition, draft law prepared by that Ministry for our opinion although circumstances relevant from a minority rights point of view can only occasionally be detected in these.

[42] The right to joint decision-making – according to the legislator’s intention, and the provision of the Minorities Act – can play a role in the decision-making mechanisms of those local governments where a given national or ethnic minority has a minority self-government or (in its absence) a spokesman. The right to joint decision-making can signify in certain instances the right to consensus, in other cases the right to express an opinion. The ”leaving out” of a party entitled to voice an opinion from the decision process, however, does not entail concrete legal consequences; at most the leader of the public administration office may make such a breach the subject of complaint.

[43] The title of the research: ”A középiskolai történelem és társadalomismeret tankönyvek romákkal kapcsolatos tartalmai” [Contents of secondary school History and Social Studies text books related to Roma]. The study will be published in a volume of studies entitled: ”A magyarországi romák politikai és emberi jogai, a jogok érvényesülésének társadalmi feltételei” [Political and human rights of Roma in Hungary, and social conditions for the realisation of these rights].

[44] We offered a broad interpretation of state support, including here, for example, the favourable judgement of applications for frequencies if undertaking of obligations connected to the ensuring of minority rights featured among the conditions of the application.

[45] Cable television companies and community television companies can be included in this sphere.

[46] Whereas the sittings of the Parliament and of the local governments are as a general rule public, i.e. in principle any one may participate in these in person and have access to information on national or local public affairs and data of public interest, in practice it rarely occurs that citizens attempt to satisfy their ”hunger for information” with their personal attendance. Considering this, both the Hungarian Television and the Hungarian Radio transmit live broadcasts of the sittings of Parliament. In settlements possessing more advanced infrastructure, it has also become an accepted custom for local broadcasts to be made of the sittings of the local government representative bodies. This usually depends on an agreement between local cable television providers and local governments.

[47] We consider it important to point this out since – in spite of the explanation given – we have received judgements or critical comments suggesting that it is a deficiency of our report that it does not treat at length or emphatically address Roma-related problems, in particular prejudices faced by the Roma minority etc.

[48] As member of the Council of Europe, Hungary joined several international agreements under the aegis of the former, which are concerned with the rights of European regional and linguistic minorities. Naturally there are tasks which it is possible, or necessary to call to account in the public service media of the countries concerned.

[49] Should a political decision be brought that the personal scope of the minority law be extended to citizens of the various member states settled in Hungary, then logically the demand for mother tongue (from a Hungarian point of view, foreign language) information would increase. We are thinking in the first place of the citizens of Germany, Austria, Slovakia, Slovenia, Greece and Poland living in Hungary, however, as a function of the extension of the EU, we should also take account of the citizens of Bulgaria and Romania, who, if they settle in Hungary, would essentially be able to enjoy the full rights of the national and ethnic minorities.

[50] According to the ”division of labour” between the parliamentary commissioners (partly based on provisions of the law, partly as developed for practical reasons) the supervision of social rights, and children’s or parents’ rights is as a general rule the competence of the Parliamentary Commissioner for Civic rights or that of his General Deputy.

[51] We address the subject of adoption of Roma children in detail – in terms of the latest developments, and questions of principle – under a separate sub-heading of this chapter.

[52] Közös Memoranduma Társadalmi Befogadásról Magyarországon [Joint Memorandum on Social Inclusion in Hungary] see www.eselyegyenloség.hu; prepared in accordance with the recommendations of the Accession Partnership by the Government of Hungary and the Directorate-General for Employment and Social Affairs.

[53] We treat the subject of legislative irregularities related to the letting of social housing in a separate chapter.

[54] The rules on debt management services of the Social Act were modified by the CXXXVI Act of 2004. This however will only come into force from the 1^st April 2005. According to the amendment justification: ”Housing-purpose credit arrears can not be treated, or only treated with difficulty, within the framework of the current debt management service … For this reason the amendment to the law creates the possibility for support to be offered alongside conditions more favourable than at present in the instance of housing-purpose credit arrears. According to the amendment the possibility arises for a higher total of support to be claimed (maximum 400,000 forints), as well as for the time limit of the debt management service to be established at a maximum of 60 months.”

[55] Közös Memoranduma Társadalmi Befogadásról Magyarországon [Joint Memorandum on Social Inclusion in Hungary], see footnote 52.

[56] Section 7 (1) of the Child Protection Act: a child may only be separated from its parents or other relations in its own interests, in cases defined by the law. It is not permissible to separate a child from its family due to a threat arising purely on material grounds.

[57] ”The Parliament requests of authorities involved in the application of s. 90/A of the LXXVIII Act of 1993 on Tenancy of Flats and other Premises, and their Alienation that until the realisation of the current resolution, or the enactment of the new legislation - in the interests of preventing the homelessness of children – they enforce in the various procedures the children’s rights contained in the XXXI Act of 1997 on Child Protection and Guardianship Administration.”

[58] In connection with these cases it can be said that generally legal requirements referring to writing are not adhered to. It is not infrequent that the spoken petition of the complainant is – likewise in speech – summarily rejected. In comparison with this, in the cases of local government authorities the rules of the GSAP have to be employed, i.e. the application of the client must be recorded, a resolution must be provided to the client in writing about the rejection of the application with appropriate justification.

[59] Júlia Szalai: A társadalmi kirekesztődés egyes kérdései az ezredforduló Magyarországán [Questions of social exclusion in Hungary at the turn of the century], Szociológiai Szemle, 2002/4.

István Kemény - Béla Janky - Gabriella Lengyel: A magyarországi cigányság 1971-2003. [Hungary’s Gypsies 1971-2003] Gondolat-MTA Etnikai-nemzeti Kisebbségkutató Intézet, Budapest, 2004.

[60] Júlia Szalai: A jóléti fogda – I. [The welfare jail – I.] Esély, 2004/6.

[61] The LXXVIII Act of 1997 on the Formation and Protection of the Built Environment states that it is the building authority’s duty to prescribe the discontinuation of use of a structure or section of a structure used without permission or posing a threat to the soundness of the building, to life, health, public security or property security. The building authority’s duty is additionally to fulfil the obligation of maintenance and inspection of the building structure, and where necessary of reconstruction, renovation or demolition if the state of the building structure poses a threat to soundness of the building, life, health, public security or property security.

[62] The notary did not initiate procedures of the higher building authority aimed at establishing critically dangerous condition of buildings, in spite of the fact that prior to the Ombudsman’s investigation the authority department of the public administration office – at the request for help by the complainant – drew attention to the fact that, should the settlement’s notary not have building authority competences, the building authority of first instance must be notified of the presence of the critically dangerous building, at the same time pointing out that the implicit acquiescence of buildings being inhabited that were declared critically dangerous by the authority is partly the responsibility of the notary.

[63] Houses which could not be renovated profitably, and whose owners obtained property elsewhere, fell into the possession of the Hungarian State, their trustee was the Treasury Property Directorate.

[64] The notary designated by the public administration office for the holding of building authority procedures of the first instance, could by now only have taken measures for the demolition of the buildings. The property was still in the possession of the local government, and was used by tenants of the local government, lawful home users and those without legal title. The local government came to an agreement with the buyer about the purchase, and the buyer began the demolition almost immediately. The resolution granting permission, however, only became of force 20 days later.

[65] We also asked the head of the public administration office to draw the attention of the notary requesting the designation of the other proceeding body and of the building authority designated for the conduct of the procedure of the first instance to the application of special procedural rules to be followed in a situation posing a direct threat to soundness of the building, life, health, public and property security in the instance of property in the possession of the local government as following from the designation of the proceeding body.

[66] The report prepared about the case also extended to the examination of adherence to other rules of law apart from the application of the provisions of building legislation.

[67] Local governments had already sold more than 70% of their housing stock of 1990 by the beginning of 1997. The wave of privatisation reached its peak in 1995, when approx. 106,000 flats entered private hands.

[68] It was literally a question of staff of the Roma Press Centre, disguising their identity, and posing questions relating to the adoption of Roma children to employees at various guardianship offices, whose answers were recorded both as visual and sound recordings without their knowledge or consent, i.e. by ”conspiratorial” means. Once the recordings were transmitted our office received numerous requests, largely from journalists of the written press who wished to know if the Ombudsman had investigated similar cases, whether or not we would commence an investigation in the given case, and what was the Ombudsman’s opinion of the facts presented on the television programme.

[69] It is a concrete question of the staff of the Roma Press Centre, who disguising their identity posed questions relating to the adoption of Roma children of employees at various guardianship offices, whose answers were recorded both as visual and sound recording without their knowledge or consent, i.e. by ”conspiratorial” means. Once the recordings were transmitted our office received numerous requests, largely from journalists of the written press who wished to know if the Ombudsman had investigated similar cases, whether or not we would commence an investigation in the given case and what is the Ombudsman’s opinion of the facts presented on the television programme.

[70] Characteristic features could be, for example, special dietary customs of religious groups.

[71] Such a joint standpoint was given, for example, on 15^th April 204 when one complainant asked for our standpoint on enforcement questions of the Equal Treatment Act, touching the competences of both parliamentary commissioners.

(Document A 2491/2004)

[72] The decision of natural persons depends on the disposing capacity of the individual. In the case of children parents may exercise the various rights arising from minority identity. The most palpable example of this is registering a child’s birth with a national minority first name or the initiation of appropriate nursery instruction and teaching.

[73] This type of legislation based on statistical measurements is not unknown in the practice of neighbouring countries either, for we know that in certain areas inhabited by a minority community in a significant number, e.g. in Romania, the exercise of certain language and other minority rights are tied to whether or not the number of beneficiaries reaches a certain proportion of the total number of inhabitants.

[74] See s. 5 (1)-(2) of the Data Protection Act.

[75] The entire procedure is fairly bureaucratic, since teachers working in public education institutions, and de facto head teachers are aware of how many Roma are studying in the class or school, yet rigorous adherence to the Data Protection Act demands this essentially superfluous administration.

[76] See the content of s. 3 (1) of the Data Protection Act and s. 75 (3) of the Civil Code.

[77] Here including the exercise of both active and passive voting rights.

[78] According to some surveys a considerable proportion of employees are unaware of their fundamental rights. At the time of compiling this Report we had only been informed by the press that the Ministry of Employment and Labour is planning the reorganisation of the legal advice and legislation information system. In view of the importance of the question, we would also like to stress here that we would like to be acquainted with these conceptions, and are ready for professional consultation before a decision is reached.

[79] In previous reports we spoke in detail of the fact that a number of the provisions were created at our initiation.

[80] Published in Resolution BH 2004.225 of the Supreme Court.

[81] Following the close of our investigation three of the employees concerned turned to the employment courts, thus we are unable to take further measures in the case.

[82] Without arrogating to ourselves the right to assess – ”from within” - the running of bodies of the judicature, it is our experience that in such instances the various authorities adopt the view points highlighted by the Minorities Ombudsman and pay particular care that the right to equal treatment be realised and that not even the semblance of discrimination should arise.

[83] In Amnesty International’s most recent report assessing the situation in Hungary, published on 26^th may 2004, under the heading of ”discrimination against Roma” there are accounts of several instances verifying the occurrence of police treatment humiliating to Roma. See the report on this subject on the www.amnesty.hu website. In February 2005 NEKI published its ”White Book” on instances in 2004. Under the title of ”Indemnity, police and prosecution procedures” it presents in a separate chapter cases raising the suspicion of the discriminative nature of criminal procedures towards Roma. (The publication is obtainable from the Legal Defence Bureau for National and Ethnic Minorities or from the Otherness Foundation.)

[84] The number of complaints is usually in the thirties. In 2004, for example, we received 35 such cases. Thus this group of cases, in contrast to those regarding execution of sentences, displayed neither visible decrease nor increase.

[85] See chapter VIII, title 2.

[86] Section 2 (1) ”…The Police hold in respect, defend human dignity and protect the rights of man”.

[87] Section 5 ”Police officers discharge their tasks of service according to rules of law, other legal instruments of state control founded on the rules of law, organisational-operational regulations, description of work sphere and provisions of superiors”.

[88] Section 151 (1) ”Who seriously threatens another with the perpetration of another criminal act for the purpose of arousing fear, directed against the life, bodily integrity or health of the threatened person or relative …”

[89] (2) ”An offence carried out by a professional member of the force in place of service or in connection with service must be judged in the framework of a disciplinary procedure”.

[90] Section 30 (1) A professional (contracted) staff member of the armed forces (territorial army, border guard, police, civil defence, board of customs and excise, law enforcement institution, state and professional fire brigade, civil national security services) must be judged in the framework of a disciplinary procedure for an offence committed during the duration of service at a place of service or in connection with service. The disciplinary authority – should the need for confiscation or prohibition from driving arise – is to inform the offences authority of the result of the procedure. If the relationship of service ends before the judgement of the offence, the offences authority judges the offence.

[91] See Law Decree 11 of 1979 on Implementation of Sanctions and Measures (Bv. Codex)