Introduction

It can be inferred from our customary statistics at the end of the report that the number of complaints we received in 2005 fell slightly, at least compared with 2004. At present we cannot judge whether this means that the rise in complaints that lasted for several years has now fallen off, perhaps even reflecting a reversal, or whether this is just a temporary phenomenon. Naturally the establishment of the Equal Treatment Office may have played a role, as well as the fact that in 2005 we did not make a visit to a Hungarian county, and the latter always has the effect of increasing the number of complaints. Nevertheless the change is not so significant as to be able to draw wide-reaching conclusions. The spread of complaints reveals a high degree of consistency, just as the level of acceptance of our recommendations and proposals has not changed greatly, or may have improved slightly.

2006 is also an election year for minority self-governments, so we shall make some comments regarding changes to the Minority Act and to the Election Rights Act. In both cases the changes were long needed, and so could be cause for celebration. In the case of the minority self-government legal material there is genuine reason for this, since the changes definitely represent a step forward even if they are not optimal.

The situation is different with election rights. The report deals in detail with the double failure in this area (legislation, constitutional jurisdiction), and we have already made a proposal for what action needs to be taken in the future. We can only hope that the events of the minority self-government elections will not prove right the most pessimistic expectations, although this cannot be excluded due to the anomalies of the current regulations. The loss of the so-called “beneficial mandate” is an extremely regrettable and serious step backwards, although perhaps its loss could still be recovered with the existence of the necessary will. The most important action in the nearly seven remaining months before the self-government elections is to reduce the risks to minimal and where possible to prevent the abuse of rights through well-preparedness. This requires greater activity than usual on the part of public administration, but the minority self-governments currently in office can also contribute greatly to the successful preparation and organisation of the elections.

In last year’s report we pointed out difficulties related to ethnic data, and also the European dimension to the problem. We also mentioned the fact that endeavours to find a solution are taking place through two channels, namely the European Union and the Council of Europe. The working group established by ECRI (European Commission against Racism and Intolerance of the Council of Europe) has taken many steps in the last year. It has compiled relevant rules of the member states, consulted with experts, and arranged a conference with the special authorities (ombudsmen) of the member states, with the aim that its recommendation no. 10 on the handling of ethnic data be approved. It became clear, however, that the problem is so multi-layered, and the approaches of the member states so varied, that the recommendation requires longer drafting and negotiating work. This explains why the parallel working group within the EU framework has to date only published two studies, and has currently restricted itself to publication of good practices. Whilst ECRI has not given up hope of the recommendation being approved, at present it has only published a document containing guiding principles.

By way of conclusion we can establish that there is a predominant view that collection and treatment of ethnic data are indispensable for both minority protection and equal opportunities. Or to put it another way: drawing up and implementing genuinely effective and adequate minority protection systems, as well as anti-discrimination policies and legal institutions is inconceivable without the creation of appropriate databases.

The rejection by certain states, citing grounds of data protection, cannot be regarded as acceptable; in fact the lack of such data can refer to an inappropriate approach by the given state.

The typical fields of ethnic data collection are the following:

- employment,

- education,

- health-care,

- jurisdiction,

- immigration,

- housing affairs and

- public administration staff.

In the course of data-handling it is naturally necessary to adhere to the principles, procedures and rules approved Europe-wide in connection with personal data. In the course of ethnic data collection attention must always be paid to privacy, voluntary submission of data, restriction to legitimate and legal aims, proportionality to the desired aim, and supply of appropriate information.

Chapter I.

The minority self-government system

1. Modification of legal regulations for the minority self-government system

The Parliament approved the CXIV Act of 2005 on the Election of Minority Self-Government Representatives and Modification of Certain Acts on National and Ethnic Minorities (EMSR Act) at its session on October 17, 2005. It would not be an exaggeration to claim that since the regime change in Hungary, there has been no law whose creation was preceded by such lengthy drafting work. The need for comprehensive reform of the minority legal material arose as early as 1995 when the minority self-governments began to operate [1], and the conception of the legal amendment was submitted for the government to give its opinion in 1996.

In the past decade numerous normative texts have been conceived, which aimed to ensure the extension of minority rights and the reinforcement of the minority self-government systems, however the majority of these were not discussed to any real effect by the Parliament, and only a few received the backing necessary for framing legislation. Given its significance, it is worth mentioning the amendment of 1999 to provisions concerning minority voting rights and the extension of the rules relating to minority education that entered into force on September 1, 2003. However there are some problems on which no action has been taken for years. For example, there is still no well-developed conception for parliamentary representation of minorities or for modifying the financing system of minority self-governments.

In this report we cannot undertake to analyse in detail the new legal provisions of minority law, however it is worth mentioning briefly the most significant changes.

1.1. Minority self-government voting rights reform and the expected effects

In previous reports the abuses we set out in detail made it clear that the existence of the minority self-government system could be at risk if the 2006 elections are carried out in an unchanged legal environment. Those participating in codification work agreed that statutory regulations should comply with the constitutional requirement that minority communities themselves be able to elect their own self-governments. After reviewing proposals made in previous years it became evident that making stricter the rules for standing as a nominee and separating the time point of the local government and the local minority self-government elections would not fulfil this requirement. So only one solution remained that could guarantee the formation of minority self-governments within a constitutional framework: using a minority election register to precisely define the sphere of those entitled to vote.

The minority election register became the subject of fierce debate. The parliamentary parties conducted negotiations lasting for months in order to achieve the two-thirds majority needed for enacting legislation.

According to the new regulations, the minority election register will play a key role during the minority self-government elections. Firstly, only those listed on the register can participate in the election process, and secondly an election can be announced if the number of minority electors on the registers exceeds 30.

The minority election register is of significance for both the regional and the countrywide minority self-government elections. In these elections the members of the local minority self-governments are eligible to vote. Regional self-government elections can be announced if in the given county there are minority self-governments operating in at least ten settlements, or in ten municipal districts in the case of Budapest. The condition for the countrywide minority self-government elections is for there to be at least 4 local minority self-governments operating countrywide. In terms of numbers this means that regional self-government elections can be announced if in the given county or in Budapest there are at least 300 electors on the minority electoral register, whereas 120 electors are sufficient for the countrywide minority self-government elections to be announced.

We do not find these provisions worrying in themselves, although in our opinion direct election would have better promoted the acceptance and backing of the self-governments within the community than the elector system, which is not wide-spread in the Hungarian legal system. As a further example we can only cite Act L of 2003 on the National Civil Fund Programme for the establishment of the Council and regionally based Colleges that decide about concrete grant proposals.

We do not agree, however, with the decision to place the new legal provisions, including compilation of an electoral register, within the competence of the leader of the election office instead of a committee composed of members of the minority communities.[2] As a consequence almost all that has remained of the original conception is that the elector has to make a statement about their affiliation to the given national or ethnic minority in order to be included on the register. We regard it as a fundamental failing of the statutory regulations that there is no sanction for applications to the register that are found to be unlawful or can be characterised as abuse of the system. Despite violations experienced in recent years during electoral procedures, there is no way of examining the truthfulness of the statement, i.e. the real identity of the elector. This means therefore that the minority community cannot take significant measures against inclusion in the minority electoral register even if it is public knowledge or evident that the given applicant is not a member of their community.

In our opinion the minority election register in this form is not suitable for filling the role of a safeguard, i.e. the purpose of its creation. The necessary and expected guarantee that the minority self-governments will in fact be elected from members of the given minority communities still does not exist.

In the proposal we submitted on September 17, 2003, we asked the Constitutional Court to annul the legal provision under which the same sphere of voters can take part in electing local governments and minority self-governments. The EMSR Act repealed the opposed section of the law, but did not dispel our concerns. We therefore requested that the Constitutional Court, extend its procedure to an investigation of the new statutory regulations, using the contents of our original proposal.

The Constitutional Court in resolution 45/2005. (XII. 14.) AB analysed the right of those affiliated to a minority to self-determination as well as the content of the right to representation. It rejected the annulment of the statutory regulations on the minority election register, as well as our proposal concerning establishment of unconstitutionality by default.[3] Whilst this decision apparently closed the debates concerning the constitutionality of the minority election register, in fact we suspect that as a result of the experiences of the 2006 self-government elections the statutory regulations will have to be reviewed again.

We have to conclude this sub-section of the report on voting rights with the thought that although the Parliament has framed a law that in principle provides the members of minority communities with the right to form minority self-governments, suspected irregularities in the course of this right being exercised continue to pose a threat to the full realisation of the constitutional right to representation. The creation of the election register in its current form cannot provide an independent legitimate basis for the self-governments, however we now consider that there is only a realistic chance of this being achieved following the next local government elections.

1.2. The fate of the “minority beneficial mandate”

National and ethnic minorities are typically scattered throughout Hungary, so based on the general rules of the election system in most of the settlements where they live they have no realistic chance of acquiring a mandate on the representative body of the local government. In order to realise the right of minorities to representation, the possibility of acquiring a beneficial mandate was used until now as an effort to reduce this disadvantage [4].

According to the regulations no longer in force, in the small list election system, i.e. in settlements with a population under 10 thousand, a minority nominee could gain a place on the local government representative board if they received more votes that half of the smallest number of votes required to gain a mandate. In the mixed election system beneficial mandates could be awarded if the minority compensation list has more than a quarter of the smallest number of votes needed to acquire a mandate. Claiming a beneficial mandate in both election systems was possible if no representative of the given minority had already gained a place on the representative board under the general rules.

These election law provisions were not found unconstitutional. According to the 809/B/1998. AB resolution of the Constitutional Court, by providing the possibility of gaining a beneficial mandate, the Parliament had enacted a “rule containing positive discrimination”, which was therefore not in breach of constitutional rights.

The legislator wished to help promote the exercise of the right of minorities to representation through this legal set-up. However the provisions of the election law were not suited to achieving this aim because it became clear that they could easily be played foul and give rise to serious abuses. In the 1998 and 2002 elections significant numbers of minority nominees gained places on the bodies of the minority local governments, who had no tie at all to the community they allegedly wished to represent. It is only possible to take action against this phenomenon by making the election rules more precise.

At its session on June 13, 2005, the Parliament approved an amendment under which the representative of the local minority self-government who was elected with the most votes (if they achieved a fixed proportion of votes) by making a statement could have become a member of the local government representative board. Our Office took part in the codification work, however this solution was not negotiated with us, and no notice was taken of our opposing opinion and objections.

The President of the Republic did not sign the Act due to the concerns that had arisen, and proposed a preliminary investigation of the unconstitutionality of the non-promulgated law. The Constitutional Court in resolution 34/2005. (IX. 29.) established that the opposed legal provisions were unconstitutional. According to the justification for the decision, this regulation is not the only possible solution for ensuring the representation of minorities, it differs from the principle of equality of election law stated in the Constitution, restricts the fundamental right to be elected into the representative body of those citizens not affiliated to a minority, and furthermore is not in line with the requirement of democratic legitimacy following from article 2 of the Constitution.

At that time a unique “midway situation” arose: the new provisions designed to ensure the representation of minorities could not be promulgated, whilst the legislator did not want to keep in power the earlier regulations for acquiring a beneficial mandate.

In October 2005 our standpoint addressed to the Parliamentary Speaker drew attention to the fact that without urgent legislation the institutionalised representation of minorities on the local self-governments that goes together with their voting rights could be put at risk. We explained that with certain corrections we consider the possibility of the beneficial mandate to be maintainable in the future, and recommended that the minority electoral register also be extended to local government elections.

The Parliament did not pay significant attention to this solution, and instead of settling the problem as a matter of urgency, requested that the government attend to the drafting of a bill on minorities acquiring the beneficial mandate, and that the bill be submitted within 30 days on the basis of negotiation with the four representative groups.

In December, 2005 negotiations took place between the codifying ministries and the experts of the representative groups. The parties in theory agreed with the institution of the beneficial mandate, however their opinions differed significantly on the question of European Union citizens standing as minority nominees. The debate arose due to the fact that the LXXVII Act of 1993 on the Rights of National and Ethnic Minorities (Minorities Act) only extends its personal scope to Hungarian citizens. The larger opposition group of MPs wished to exclude EU citizens from the possibility of acquiring a beneficial mandate [5]. As a result of the talks it seemed that a compromise solution was becoming clearer, however the representative groups unexpectedly discarded the draft text that had been debated for months and decided in favour of submitting a bill that was not supported by us.

The bill – significantly overstepping the originally set down deadline – was finally not submitted by the government but by four parliamentary representatives. The T/19150 independent MP bill wished to return to the earlier regulations that had been annulled by the latest amendment to the minority legal material.

The possibility of acquiring a beneficial mandate would have been given to all those who assume representation of the given minority, but did not necessitate them actually being members of the given minority community. It would have been possible to award beneficial mandates in settlements where at least 30 electors had been included on the minority register.

Given the short deadline available for negotiations the general assemblies of the national minority self-governments were unable to debate the bill. Nevertheless the presidents of the bodies indicated their non-agreement with this solution. Whilst the Parliament did in fact begin general debate of the bill, its inclusion on the agenda was dismissed at the last session before the Parliament’s dissolution.

The new Parliament can begin its real work as early as May, so in principle there is still a chance that a law providing for the beneficial mandate may be conceived in time for the autumn local-government elections. Such emergency legislation would not be without precedent, since significant amendments to the Election Act, including making more exact the rules for acquiring a beneficial mandate, were passed and brought into force just two months before the local government elections in 1994 [6].

On the basis of authorisation under section 26 of the LIX Act of 1993 on the Parliamentary Commissioner for Civil Rights, we wish to request that the newly formed Parliament frame the necessary statutory provisions to ensure the realisation of the right to representation (that features in the Constitution) as a matter of emergency, as well as the rules for acquiring a beneficial mandate at the local government elections.

2. Key elements of amendment to the Minorities Act and problems awaiting solution

In our report last year we analysed in detail the bill providing for amendment to the Minorities Act. We presented those problems that could be solved in the course of codification work, as well as speaking about the failings of the normative text too. Attention was paid to some of our suggestions, yet other questions remained in which we did not experience any improvement.

When the statutory amendment came into force, it brought an end to the period lasting more than a decade when the legal status and the operation of the minority self-governments were often only “regulated” by the standpoints and legal interpretations of law enforcement bodies, in the absence of concrete statutory provisions or because of contradictions in the legal material. The new provisions provide the conditions for minority self-governments to perform their tasks within a clear public law framework. The Minorities Act preserved the possibility of analogy, however hopefully provisions for local governments will only have to be applied to minority self-governments due to a lack of legal regulations in exceptional.

One of the key aims of the amendment was to strengthen the local-government character of the bodies elected by minority communities. Among the rules on legal status it is worth highlighting the fact that the Parliament framed:

· a definition of minority self-government;

· instances in which the minority self-government and the representative mandate are terminated, including rules of incompatibility;

· rules of remuneration;

· separate provisions concerning the president and deputy president. In connection with this it is important to mention that these posts in future can only be terminated by the court, and cannot be revoked by the body.

These provisions have already entered into force, however the law that was passed rules that they cannot be applied to minority self-governments formed prior to November 25, 2005.

A significant change is that the Parliament set down detailed rules for the functioning of minority self-governments, including rules for convening and leading board sessions, as well as bringing resolutions, taking minutes, establishment and functioning of committees, and provisions concerning associative forms.

The legislator made more precise the set of tasks of minority self-governments, the rules for budgetary management, the rules for delegating powers, and compulsory elements of content for cooperation agreements. The Minorities Act contains provisions on the possibilities of legal remedy open to minority self-governments, as well as the rules of legal audit.

The new provisions of the Minorities Act promote a solution to problems that for years have made more difficult the daily running of minority self-governments. We find lacking, however, the fact that the financing system was not modified and the necessary conditions provided for stable, reliable operation at the same time as the statutory amendment.

The central budget currently allots financial support equally to local minority self-governments for their running costs. In distributing financial resources neither the number of members of the minority community represented nor the tasks performed are taken into account, which can lead to serious disproportionateness. It is evident that an active self-government performing a wide range of activities will have fundamentally different budgetary needs from a body that only operates on the minimal level set down in rules of law. Nor is this financing practice suitable for allowing the Parliament to determine support for operation according to objective criteria, which means that decisions can be conceived that are entirely random.[7]

In our opinion the effective budgetary law at any time should at least guarantee that the nominal value of the financial allowance given to minority self-governments not be reduced.

A significant proportion of minority self-governments do not have any other source of income beyond support made available from the central budget, and all expenditures arising in the course of their running and performing tasks have to be covered from this sum. As a consequence of the almost 10% reduction to the support in 2006 these bodies will have even less opportunity than now to carry out significant work. Their situation is made even worse by the fact that in future they will have to reckon with a tax levy that existed to date but in practice was most often not enforced.

In the past year a Budapest district minority self-government organised a cultural event tied to a city or and excursion, the costs of which were covered from the budget for that year. The financial department of the district local government drew their attention to the fact that these expenses, based on the CXVII Act of 1995 on personal income tax, qualify as representation, i.e. as taxable benefits-in-kind, on which health contributions must be paid.

The minority self-government system came into being as a result of the 1994-1995 elections. According to the provisions of the Personal Income Act in force at the time “the value of all products and services, received by a private individual in close connection with a commercial, official or diplomatic event under the title of representation” qualified as tax-free benefits-in-kind. In recent years taxation regulations have changed significantly, and the Parliament has continually restricted the immunity from taxes and public insurance for benefits given under the title of representation.

According to the effective provisions of the Personal Income Tax Act representation is: “Hospitality (food and drink) and connected services (travel, accommodation, free time programme etc.) offered in the framework of business, official, professional, diplomatic or religious functions or events connected to the activities of the granter or offered in connection with state or religious celebrations.”

The question can arise therefore whether the events organised by minority self-governments or sessions of the body come under the scope of the provision or not. In order to clarify the legal situation, we requested the standpoint of the Hungarian Tax and Financial Control Administration (APEH). According to APEH’s legal interpretation, personal income tax and contributions must be paid on the standard level value of hospitality arising at the events of minority self-governments, board sessions, and public hearings according to the rules for benefits-in-kind. There is a liability to pay 44% personal income tax and 11% health contributions for benefits-in-kind provided under the title of representation.

In certain cases the Personal Income Tax Act provides rebates connected to the tax liabilities. If the taxpayer is a civil organisation, public body, church legal person, foundation or public foundation, then from the tax on representation it is not necessary to pay, “44% of 10% of the total expenditure displayed in the account for the tax year arising due to public benefit activities or activities according to aim but at most 44% of 10% of the total annual income accounted for the tax year”. Minority self-governments do not feature in this list, so according to APEH’s standpoint they can only claim the rebate that they do not have to pay "1% of the total annual income accounted for the tax year, but at most 44% of HUF 25 million”. Therefore in terms of taxation law the minority self-governments are in a more disadvantageous situation than civil organisations or foundations, which in given cases may have a significantly higher income.

The minority self-government system is an institutional guarantee of cultural autonomy. Its fundamental task – as set down in the Minorities Act – is to promote the preservation, of a common language and historical traditions for future generations. One of the major ways of doing this is for minority self-governments to regularly organise cultural events and programmes that reinforce their sense of identity and encourage connections within the community. It can be regarded as a common practice for minority self-governments to contribute to the fairly modest costs of food and drink at such events. The minorities in Hungary are scattered throughout the country, so in order to reinforce community awareness minority self-governments relatively often organise national or regional meetings, and may even assume some of the travelling expenses themselves. The majority of minority self-governments can not afford to pay the total of 55% personal income tax and health contributions on such services. Due to these taxes and public insurance minority events and reunions may be placed at risk, which could result in decline of the community life that was reborn barely more than decade ago.

On the basis of section 26 of the Ombudsman Act we are requesting the Parliament to promote performance of tasks belonging to the sphere of minority cultural autonomy by giving minority self-governments a tax rebate.

In our earlier reports we have already addressed the problems that arise from the local minority self-governments not having an independent administrative set-up or infrastructure, meaning that their operational conditions have to be provided by the local governments. Although in a legal sense there is no superior/inferior relationship between the local government and the minority self-government systems, in a significant number of settlements the relationship is characterised by strong dependence of the minority self-government on the local government. In this respect the amendment to the Minorities Act did not bring about a significant improvement. The only change is that the obligations of local governments are no longer prescribed by government decree but by law.[8]

Again we recommend that the government make more precise the provisions of the Minorities Act in another rule of law, defining in particular what can be regarded as adequate use of premises in the various settlement types.

3. Actual and possible changes to the personal scope of the Minorities Act

Drafting of the law on minority election rights began as early as 2003, or more precisely a process that after reviewing events in 2005 we could also describe as a kind of “brainstorming”. Alongside the need to draft new legislation, the experts of the political parties participating in codification, and the professional codifiers (staff of the Ministry of Justice and Ministry of the Interior) agreed about the urgency of the task.

The reason why it was deemed urgent to carry out the election law reform was that there was wide-scale consensus that it would not “be right” to amend an election law in the year preceding the elections, i.e. in 2005.

One of the main points of debate during codification became the question of the personal scope of the Minorities Act. At the time when the Minorities Act was passed in 1993 it was disputed by nobody that the communities of legally recognised national and ethnic minorities and their members have Hungarian citizenship, which is a fundamental condition sine qua non of minority legal status. The law was appropriately exact, since it even stated that its scope does not extend to those persons who have immigrated and settled in Hungary.

In our report on investigation into the 2002 elections we pointed out that in practice checking the citizenship of the electors had been neglected, since it became clear that in certain areas of the country to differing degrees persons not of Hungarian citizenship had also taken part in the minority self-government elections.

The primary cause of this was that the minority self-government elections and the local government elections were held at the same time and place under identical circumstances, and since immigrants and those settled in Hungary had voting rights for the local government elections they were not excluded from the minority self-government elections.[9]

Despite this the professional codifiers were surprised by the four-party consensus on the conceptions for the personal scope of the Minorities Act following Hungary’s accession to the European Union.

The “order” as given by politicians to the codifiers was for the scope of the Minorities Act to extend, similarly to the local government election rights regulations, to EU citizens who live in Hungary as their home, i.e. to essentially the same sphere if persons who have election rights for the local government elections.

The concept drawn up by the four-party consensus also raised certain concerns however. The native countries of certain minority groups living in Hungary (e.g. Serbians, Croatians, Romanians, Armenians) did not become members of the European Union, so those persons who have come from those countries with a settlement permit or refugee status do not come under the personal scope of the Minorities Act. At the same time, however, those values (common language, culture etc.), for the protection of which the Minorities Act was fundamentally created can also be established or discerned in the case of these communities or natural persons.

The delay to the codification works not only overrode the rule of customary law, according to which there should not be election law reform in the year preceding the elections, but also made the course of the legislation opaque and unreliable. For this reason the EMSR Act – which the Parliament passed at its October 17, 2005 sitting, continued to list Hungarian citizenship as a condition for minority rights being given. Section 28 of the law cited modified section 1 (1) of the Minorities Act. The new provision states: “The scope of the law extends to all Hungarian citizens with a place of residence in the Republic of Hungary, who regard themselves as belonging to one of the national or and ethnic minorities or the communities of these persons.”

The amended section 61 (1) of the Minorities Act continues to list the ethnic groups native to Hungary, i.e. it essentially still determines the legally recognised national and ethnic minorities in a taxative form.

Section 61 (2) of the Minorities Act currently ensures the possibility for electors, who feel and declare that they are a minority ethnic group or community to request that the legal catalogue of minorities be extended, by means of a petition.

So theoretically the personal scope of the minorities Act could change by other national groups, outside the 13 current groups, proving that they meet the criteria laid down in section 61 (2) of the Minorities Act, i.e., by getting the signatures of a least one thousand electors belonging to the given minorities who propose that the Parliament should decide on extending the scope of the Minorities Act.

The petition must be submitted to the President of the National Election Committee, who is obliged to seek the standpoint of the President of the Hungarian Academy of Sciences concerning whether the legal conditions have been met.

In almost every year since our Office has been running such a request from natural persons or the representatives of communities has been made. For example we had a client who inquired about how it was possible to create legal status provided by the Minorities Act for Bosnians living in Hungary. There were also complainants who raised this question in connection with the minority rights of the Hungarian Jewish community.

In every such case we gave the appropriate guidance in accordance with the above, however at the end of 2004 for the first time a group of electors took significant steps towards acquiring minority rights status.

Chapter II.

The situation of minority community rights in 2005 – with particular regard to the collective right linked to education

1. General tendencies influencing the situation of minority education

We dealt in relatively great detail with the situation of minority education in all of our previous reports. The question of education – above all the general quality of education and the existence of the human and material conditions necessary to guarantee this – tends to be one of the most important social questions, but it is of special importance for national and ethnic minorities, since minority education is a task of key strategic importance that quite literally can determine the survival and preservation of identity of a minority community.

The year 2005 did not bring changes in terms of national minority education. The problems we encountered have long been known and differ only in degrees from experiences of recent years. One of the primary roles of national minority education is to deepen or develop knowledge of the native language (language-teaching programmes), and the teaching of various subjects in the native language closely connected to the standard of language knowledge.

By its very nature national minority education requires special conditions, since its teachers, alongside the national language also have to acquire the skills to teach a foreign language. It has a negative impact, however, on national minority teacher training that the teachers who choose this do not receive recognition in proportion to the skills required and their real achievements in the course of teaching in practice.[10]

As one of the fundamental questions of minority education we also have to speak about the problems of public education teaching concerning the Roma minority. In advance we must note that Roma minority education – although the relevant legislation was passed simultaneously with that for national minority education and within the same framework – differs significantly from national minority education.

The difference, however, does not concern rights linked to education, but has rather social-sociological grounds. Although the main aims of national minority education – primarily slowing down and preventing the process of assimilation, and preserving national identity - are also relevant to Roma minority education, in the case of the Roma community more complex tasks are called for that go beyond such aims. In the case of the Roma, the aim of education is essentially two-fold: beyond preserving self-identity, integration also has to be introduced or consolidated. By integration in this case we understand the strengthening of social acceptance, elimination of prejudices, and creating equal opportunities among population groups living under different circumstances, and naturally in parallel with this the elimination of segregation.

At the same time neither in theory nor in practice should integration come into opposition with preservation of identity (which has succeeded in the case of national minorities). It is important to stress this because in the case of the Roma minority, cultural autonomy in its widest sense, strengthened by educational means, could create the impression of segregation.[11]

Below we would like to present the wider social environment which has a decisive influence on the situation of minority education, so that the reader can receive detailed information about the tasks pertaining to the minority self-governments, the local governments, and the state, as far as education is concerned.

2. Overview of regulations concerning the educational and cultural institutions that may be maintained by minority self-governments

Sociological research has clearly shown that the older generations are those that preserve the minority native language whilst for younger generations the Hungarian language is increasingly regarded as their native language and basis of cultural socialisation. Connected to this is the fact that the population of traditionally national minority village settlements is both getting older and declining, so the role of village national minority families in preserving language is continually decreasing. From all this it follows that saving and fostering the minority culture (which the Minorities Act describes as a special value to be preserved and developed, a fundamental, immanent element of which is the minority language) by maintaining public education and public culture institutions is the joint responsibility of local and minority self-governments.

We cannot speak about a joint task since ensuring the realisation of minority rights is one of the compulsory tasks of local governments,[12] whilst the Minorities Act only sets down such a task for minority self-governments in relation to delegated sphere of tasks and competences.[13] (Correspondingly, the LXXIX Act of 1993 on Public Education makes implementing public education rights for minorities the task of either the municipal or county government.)

According to the Minorities Act, the local and countrywide self-governments of national and ethnic minorities in Hungary can establish institutions in the interests of the cultural autonomy of the minority community they represent.[14] This in fact does not actually mean an additional right in comparison to other legal entities since according to the Public Education Act anybody can establish a public education institution.

The general possibility of taking over public education and public culture institutions does not in itself represent a special right for minority self-governments since signing an agreement between the earlier maintainer and the recipient maintainer is likewise not tied to a defined type of legal entity.

In conclusion: since all the tasks and powers of minority self-governments are based on voluntary commitment, and the right of founding or taking over an institution is a general right of legal entities, minority cultural autonomy in maintenance of an institution connected to founding and taking over an institution depends on advantages provided by the state.

3. Presentation of a particularly complicated school discrimination case

One complainant turned to us with two grievances: that in the school, where she earlier taught Roma children were being discriminated against and that the school was also conducting illegal data handling.[15]

Based on the evidence of the documents sent by the complainant it could be established undeniably that the school had prepared statistics that marked out students of Roma minority by name, and the institution director himself recognised the fact that illegal data-handling had occurred.

According to the director, the school wished to introduce national minority teaching/care as early as 2001, however negotiations with parents had not lead to results. The information forms asking for special personal data (without waiting for the prior consent of the parents) were continued to be used after that time (through negligence).

We closed our investigation into this matter without taking any action because the director ended this constitutional irregularity: and deleted the illegally acquired data, and according to his statement (which nobody denied) the data on the illegal forms had “not been used”, “not compiled”, and no unlawful action had been based on the data.

The complainant made the following claims concerning discrimination:

· Roma children studying in the stream for special needs could only have lunch during teaching time so that they would not meet with the other pupils in the dining room;

· After-school supervision was not organised for the special stream, although there was a need for this;

· At the carnival event on February 18, 2005 of the 23 pupils studying in the stream for special needs, only six were allowed to take part, and generally speaking the director endeavours to exclude them from all community events;

· The door to the corridor between the parts of the building housing the normal and the stream for special needs is locked by the teachers, preventing pupils from passing to the other part of the building.

We extended ex officio the investigation originally initiated on the basis of the complaint to other questions potentially related to the concrete data handling irregularity mentioned by the complainant, as well as to the professional failings and contraventions revealed in the report of the National Public Education Assessment and Examination Centre since these could only be examined in their complexity.

It is important to know that special needs teaching/care has been taking place at the investigated institution since the 1996-1997 school year. Until the end of the 2001-2002 school year there was a separate site, however since then the school has been carrying out this task in a new wing of the central school, with integrated groups.[16]

The complainant’ suspicion that there was discriminative intention in making pupils in the special needs stream eat separately turned out not to be well-grounded, and discrimination could not be established on the basis of the information acquired during the investigation. It could, however be established that the school’s meal times practice was in breach of the school regulations. The pupils were allowed to eat in the 10 minute break between lessons although that amount of time is insufficient to spend lunch time calmly and is therefore in violation of the pupils’ right to health. In addition the pupils were sometimes sent to eat before the official end of the lessons which, by shortening the lessons, is in breach of the pupils' rights to receive care and teaching appropriate to their skills, interests and aptitudes.

On the question of organising the after school supervision discrimination could not be established because the applicant did not support their claims, whilst according to the director: “…the school offers the possibility of after school supervision to all pupils equally. In April every year the school surveys the demand for provision of after school supervision, however it was not requested by the integrated groups of the special needs stream.”

The information received in relation to participation in community events was also contradictory. All that could be established was that the school director allowed the class community and the student council to exercise the right of exclusion from school events, although according to the school’s regulations the class community has no such right, whilst the student council can only make recommendations in such a case, and decisions can only be made by the director.

Thus we could only establish that all exclusions referring exclusively to the “resolution” of the class community or the student council are unconstitutional since they infringe the right of the students to participation and curtail the powers of the director.

It was easy to judge the question of the corridor being closed that linked together the parts of the building housing the “normal” and the special needs streams since the school director recognised this fact, adding the information that this takes place “during lessons”. He also stressed that “…this does not prevent students participating in the lessons from using the WC, however what it does do is prevent children leaving the room without permission from escaping the vision of the teacher.”

So the reason for the measure, which he also stressed during our on-site visit was to ensure that pupils in the special needs stream remained in the lessons, and to prevent pupils from leaving the classroom without the permission of a teacher.

We drew attention to the fact that in a teaching/care institution there is an entitlement and obligation to solve all pedagogical problems using pedagogical means. Without legal authorisation personal freedom should not be restricted by physical means through a decision made by an educational institution.

We established that since the separation had no legal basis, this conduct on behalf of the school qualifies as discrimination violating human rights as prohibited by article 70/A of the Constitution, as indirect discrimination according to section 8 e) and g) of the CXXV Act of 2003 on Equal Treatment and Promotion of Equal Opportunities, as well as unlawful segregation on the basis of section 10 (2) of the latter.

We also stated that closing the corridor between the “normal” and the special needs streams violates human dignity if the pupil can only leave the classroom during the lesson with the permission of the teacher (in specially justified cases), since being “enclosed” can be a form of humiliation in itself.

We also pointed out that the corridor joining the two parts of the building is also the only escape and rescue route for the special needs stream: in the case of a fire or other emergency posing a threat to the health and bodily integrity of the pupils, the closed door could lead to a tragedy.

4. The situation of minority text books

One key factor in terms of minority education rights is the continuous supply of text books at a suitable level to meet education needs, which it is impossible to organise on a market basis because of the low number of copies concerned.[17] The Minorities Act, therefore, prescribes the publication of minority text-books and provision of educational implements as a state obligation. In our interpretation this means that the state guarantees to provide the indispensable material conditions for minority education.

It is a fact, however, that despite the significant endeavours of the Ministry of Education, supply of text books has remained one of the most important problems of minority education: in 2003 there was a fresh review of national minority text-book development programmes. According to this 256 text-books were lacking from the 530 needed for teaching native language and literature, and 286 were lacking from the 479 required for teaching a public knowledge subject in the minority native language.

The situation has improved since then but there has been no “breakthrough”: in both 2003 and 2004 the Ministry of Education gave HUF 250 million each for the writing of 16 works per minority, i.e. 108 in total. Appreciable applications arrived for the writing of 50 titles. In parallel the translation of textbooks for public knowledge subjects taught in the minority language also received greater attention. The Ministry of Education issued contracts for translating 23 textbooks, workbooks and answer books. As a result of the above the number of text books available for national minority education grew by 65 in the past year.

It is a fact that funding in itself can not “produce” books without the capacity of writers or translators, yet their lack should not be used as an excuse to avoid state responsibility:

· methods need to be found to involve a wider sphere of authors into the writing of text-books ,

· failings in the application procedure need to be explored in addition to possibilities of making the procedure faster and more effective.

5. Frequency problems of national minority radio programmes

In autumn 2005 several minority self-governments and organisations turned with complaints to our Office. In their complaints they raised the objection that dating from February 1, 2006. Magyar Radio Rt.’s countrywide broadcasting of national minority programmes would cease on the OIRT FM band, yet concrete measures had not been taken to solve the long-known frequency problems.

Our investigation to clarify the contents of the complaints was connected to our comprehensive investigation in 2004, which dealt with the general situation of minority rights in the public-service media. A detailed report was prepared with the title, “The realisation of national and ethnic minority rights in the media.”[18] in which we described the frequency problem resulting from termination of the so-called “eastern URH” in 2006 as one of the most important and most urgent questions.

Finding a solution to the problem has become an urgent issue because in recent years the broadcasting of national minority radio programmes on the outdated “eastern norm” OIRT FM has raised numerous failings and problems. The “eastern URH” frequency does not provide countrywide coverage; modern radio sets are no longer able to pick up the band indicated and parliamentary transmissions regularly block out the countrywide reception of certain national minority programmes.

Section 145 of Act I of 1996 on Radio and Television (Media Act) ruled that two of the three frequency bands 66,0-73,0 MHz used to broadcast Magyar Rádió’s programmes at the time of the law being passed could be used for at most three years from that date, and the third for three years. The fact that broadcasting activities in the indicated band have to be ceased on February 1, 2006 has therefore been a known fact for ten years since the Media Act came into force.

In view of the above the representatives of the minority communities in Hungary rightfully expected Magyar Rádio as a public service broadcaster to take care of finding a high-quality solution to the frequency problems of minority programmes in time.

As part of our investigation we turned to the deputy presidents of the Magyar Rádio Rt., the president of the National Radio and Television Board (ORRT), the president of the Hungarian Radio Public Foundation as well as the Minister for Informatics and Communications.

We asked each body to draw up a final conception to solve the frequency problems concerning the countrywide broadcasting of minority programmes in cooperation with the national self-governments of the minorities. The conception should meet the agreement of the 13 national self-governments of the minorities, and not be of a temporary nature, but instead guarantee the long-term audible broadcasting of minority radio programmes.

We also drew the attention of the bodies concerned to the fact that the conception drawn up has to be in line with the ResCMN resolution no.4 evaluating the implementation in Hungary of the Framework Convention for the Protection of National Minorities, in which the Ministerial Commission of the Council of Europe established it as a failing that “the time of broadcasting of neither radio or television transmissions make it possible for the targeted listeners or viewers to enjoy the programmes in the greatest possible numbers”.

In the opinion of Magyar Rádió Rt. national minority programmes should be broadcast on an independent network, on the grounds that including several hours of foreign language programme elements into a Hungarian language structure is disputable from a professional point of view. Nor in the future do they wish programme elements that do not conform to their broadcasting profile, and could result in negative changes to their listener numbers to feature on the CCIR FM networks which are at their disposal and allow a thematic programme service. They are convinced that the obligations prescribed by law can only be met with territorial broadcasting through a countrywide (DAB) digital public service multiplex.

The frequency providing broadcasting of national minority programmes was not terminated from February 1, yet the compromise reached still has not solved the problems of the current frequency service.

According to media experts the current frequency shortage could be reduced if a law on digital television and radio is passed, and the conditions for its implementation are created. However nobody can guarantee that next February the digital network that “will solve everything” will be up and running. As a result of the above we shall continue to track plans and measures to solve the frequency problem of national minority programmes. There is a need for fresh talks and professional negotiation in order for the current situation that violates minority rights to change. From February 1, 2007 a final solution has to be approved that will ensure the clearly audible, countrywide broadcast of national minority radio programmes until the digital network is constructed.

Chapter III.

Tendencies in 2005 concerning the realisation of certain individual minority rights

1. Questions concerning the use of minority names

In our earlier reports on several occasions we dealt with legal regulations for the use of minority names. The purpose of first and family names is to distinguish people from one another. On the one hand names are an obvious means of establishing personal identity. On the other hand they also express minority and national self-identity and identity awareness. The use of minority names is an important means of expressing national affiliation to the outside world. This is ensured by section 12 of the Minorities Act, which declares the right to use minority names. Within this persons belonging to the minority have the right to:

· freely choose their own first name and that of their children;

· to have their own first and last names, and those of their children entered into the birth register according to the rules of the minority native language, and to have these names so displayed in official documents;

· bilingual issue of birth certificate and official documents.

The exercise of the aforementioned rights is ensured by the law Decree no. 17 of 1982 on Birth Registers, Marriage Procedures and Use of Names (Birth Registry Act), according to which the national minority surnames that can be selected are contained in a register of first names compiled by the countrywide minority self-governments concerned and published by the Hungarian Academy of Sciences. For birth registry of national minority first names not included in the first name register, the standpoint of the given countrywide minority self-government is authoritative, in accordance with our earlier proposal.

The legal regulations for use of name therefore ensure the right of those affiliated to a minority to use of name, and are also in line with the Constitutional Court’s 58/2001. (XII. 7.) resolution, according to which the right to choice of name can be subject to state restrictions. This will only violate the constitution if the restriction does not correspond to the principle of necessity and proportionality. Thus the compulsory nature of the National Minority or Hungarian Registers of First Names does not qualify as an unconstitutional restriction.

The question of minority use of names entered our horizon again as a result of a complaint that drew our attention to the more comprehensive nature of the question.

A client turned to our Office with the complaint that being a dual citizen she did not have the right to give a name (not written according to Hungarian orthographical rules) not featuring in the Hungarian Register of First Names to her child.

The complainant’s particular reason for objecting to the situation was that prior to acquiring Hungarian citizenship, the rules for foreign citizens of the Birth register Act were applicable to her, so her earlier born children were registered at birth with names differing from the Hungarian rules.

After surveying the rules for use of names of foreign citizens and for the legal status of persons with multiple citizenship, we came to the conclusion that according to section 2 (2) of the LV Act of 1993 on Citizenship those of multiple citizenship including Hungarian citizenship should be regarded as Hungarian citizens. This means that the authorities proceeded in accordance with the provisions, thus violation of the law did not occur.

Nevertheless we consider the restriction of the use of names of persons with multiple citizenship to be unwarranted, since, although according to the letter of the law they do not qualify as a national minority, the multiple and complex nature of their identity and affiliations cannot be questioned. This circumstance reinforced our standpoint, expressed earlier on several occasions, that the desirable solution would be if inclusion in the Hungarian or National Minority Registers of First names would not be a condition of birth registry, regardless of citizenship or national-national minority affiliation. Should this solution be approved, birth registry would only be denied on the case of first names that violate individual rights, or that can be regarded as insulting or offensive.

In this spirit we turned with a proposal to the Parliamentary Committee for Human Rights, Minorities and Religious Affairs, asking them to place this question on their agenda.

In favour of legal regulations that would increase personal freedom is the fact that there is no known state interest in view of which it is necessary to block or restrict the free choice of names of parents. Moreover such a solution would involve far less bureaucracy and expense.

2. Rules protecting the identity of those affiliated to minority communities, with special regard to the treatment of personal data

On an individual level identity is the response to the question who am I, and on a community level, to who are we. We define ourselves through our names, language, age, gender, national ethnic and religious affiliation, political party allegiance, and family status etc. Identity is a sum of our biological, emotional, social and legal statuses.

Identity awareness is an endeavour for the characteristics and properties of the individual and/or the community that are deemed significant to continue existing unchanged so that the person and/or community remains identical with itself.

Minority law gives these social-psychological categories for the recognition and awareness that providing legal equality is not sufficient for national and ethnic minority communities. They require special extra rights, in order to preserve their minority self-identity, as well as their equality in the exercise of fundamental rights.

The Minorities Act contains rules expressly protecting the identity of minority communities and their members. The preamble of this Act even states this expressis verbis, stressing that the mother tongue, the intellectual and material culture, the historical traditions of the national and ethnic minorities who are Hungarian citizens and live in Hungary, and other characteristic qualities which support their minority status are considered aspects of their identity as individuals and as a community.

According to the Act all these are special values, the preservation, cultivation and augmentation of which is not only a basic right of the national and ethnic minorities, but also in the interest of the Hungarian nation, and ultimately in that of the community of governments and nations.

In addition, it states that the Parliament has formulated the Act to ensure the human and political rights of the national and ethnic minorities, and the necessary institutional structures to assist preservation of national and ethnic self-identity and to promote minority existence.

Inner assumption of affiliation to a national or ethnic community is the right of self-identity, and its declaration or concealment is one element of the right to self-determination. The regulations in effect treat both of these in the same way as an expression of the right to self-determination.

The state (and the law) is necessarily neutral in the question of minority self-identity: identity is one element of inner, personal emotional-awareness relations (autonomy).

The LXII Act of 1992 on Protection of Personal Data and Publication of Public Interest Information (Data Protection Act) and the Minorities Act however set out – regarding minority affiliation – strict data protection rules, whilst not reckoning with the possibility that although the internal emotional-conscious relations of individual persons are untouchable, their objectification (externalising them) are by no means that. The declaration of personal identity can come into conflict with the right of others to belong to a community, and to the right of the minority community to self-identity as persons joined by their language and traditions etc.

As a restriction of personal autonomy the Minorities Act [19] only states that laws or rules of law for the law’s implementation may tie exercise of minority rights to statements of the individual. According to the current regulations therefore there are no external criteria for the minority self-identity of the individual.

The latest anti discrimination legal regulations also give rise to data protection (data handling) problems.

The Equal Treatment Act introduced the concept of the equal opportunities plan. Drawing up such a plan is compulsory for state institutions, and optional in the private sphere. In view of this the Labour Code was supplemented with the new section 70/A. The aim of the plan is to improve the equal opportunities of workers from disadvanatged groups who are already working for an employer or who are potential employees by according them advantages.

The law highlights five disadvantaged groups, among them the Roma, but since other target groups can also be included in the plan should it be justified by social profitableness, it is also possible to name other minority groups to be accorded advantages.

The two public foundations that were established expressly to support the Hungarian minorities in practice also encounter the problems outlined above. These foundations face problems arising from the freedom of identity assumption since they cannot cast doubts on or check by direct means the statements of applicants in any way.

In each report period, including 2005, we received complaints objecting to the fact that it was necessary to make a statement about ethnic affiliation.

Each year we state that featuring direct questions concerning minority affiliation on application forms for forms of support does not violate the provisions of the Data Protection Act and the Minorities Act. Since the aim of minority application programmes it to support members of the minorities and participation in the applications is optional, it is reasonable to expect of the applicants that they assume and state their affiliation, not before the public but before the adjudicating body. If the data handler adheres to the rules concerning data handling and data security, and only handles the data to the necessary degree for the aim to be achieved (in view of the principle of data handling being linked to an aim), then asking the applicant to make a statement about their identity is not unlawful.

According to the Minorities Act, in the course of admission into a minority teaching/care institution preference has to be given to those of minority descent.[20] Since nobody can cast doubt on the reality of the statement concerning origin, this rule can also give rise to abuse, and the displacement of those of “real minority origin”.

In such a case what kind of “proof of origin” is necessary?

In order to make a written application for minority education/care an indirect statement of origin counts. Nobody, including the minority self-government can cast doubts on this statement.

Situations are also conceivable when a direct statement of origin is necessary. If the number of applicants exceeds the number of places available in a institution then in order to implement the rule of according advantage a direct statement of origin is indispensable, since in a minority teaching/care institution those of minority origin must be accorded advantage over others even in the case of admission to classes or groups not pursuing minority education.

A statement of origin can naturally be made by parents and guardians in the name of minors. The right of the parents to choose a form of education for their children can however conflict with the wide-ranging right to agreement on minority education of minority self-governments as those exercising community minority rights endowed with public law status.

In 2005 too we learnt of cases where minority self-governments did not give their agreement to the establishment of minority teaching/care, on the grounds that the initiators were not members of the minority community. According to the law in force there is no such legal option.

In cases defined in the Public Education Act, minority origin can play a role in selecting the institution director since where conditions are equal the advantage must be accorded to the person who is affiliated to the national or ethnic minority.

It is important to mention that in the sphere of language use rights, Hungary’s procedural laws also include rules that can be connected to minority identity.

When discussing the connection between minority identity and data protection an unavoidable question is whether or not at the time of adoption the right to minority identity of the child can be a criterion for the authorities proceeding in the case.

And who can make a statement concerning the minority identity of the child? The parent who has assisted in the adoption? The person, whose parental supervisory rights have been terminated by the court (thereby registering the child as adoptable)? Or the child whose personality is still undeveloped?

According to our view point neither the parent nor the child may make a statement concerning the right to minority identity of the child awaiting adoption to minority that would be opposed to the child’s overriding interests and impede the child’s upbringing in a family.

In another complaint that can be regarded as typical our client turned to us, objecting to the unlawful content of a tax and value certificate coming under the tax authority powers of the notary. The complainant said that whilst establishing the value of the property she wished to buy, the fact that the house and its courtyard were located in an "area populated by Roma" was taken into account, i.e. the “Mayor’s Office” was discriminating against all residents of the street concerned on the basis of ethnic affiliation. She also complained that as Roma live in the neighbourhood, this fact was qualified as reducing the value of the property by an official document.

We studied the copy of the tax and value certificate attached to the complaint, which in fact contained the expression our complainant had objected to when the property was being valued under the title of factors. This was also confirmed orally by the notary.

We established that the content of the tax and value certificate violated equality between persons, as well as human dignity because the authority issuing the certificate had taken into account the Roma origin of the neighbouring residents whilst valuing the property, although in the case of other housing areas national, ethnic and racial origin has been deemed irrelevant as is legally correct.

The tax and value certificate also violated the right to protection of personal data, since nobody may regard others as belonging to a minority group on the exclusive basis of external features and personal conviction. In the absence of legal conditions, such data may not be handled, and without legal and official notice the tax authority may not attach any importance to such data (neither as depreciating nor increasing value).

When valuing a property the national and ethnic origin of the neighbouring residents is irrelevant (see human dignity), and reference to there being Roma living in the proximity also violated the rules that data handling must be tied to purpose, and for respectful and legal collection of data and data handling; i.e. the tax authority official knowledge notwithstanding may not include data concerning ethnic origin in a tax and value certificate.

In order to remedy the constitutional violation that infringed the right to human dignity and protection of personal data we proposed the following:

· The notary should correct the tax and value certificate issued to the complainant (with a new certificate), deleting the expression of “Roma-populated area”.

· The notary should examine whether other clients had also received certificates of identical or similar content in violation of the law, and if so to issue new certificates in their place.

· Should Roma origin of the neighbouring residents have been taken as depreciating value of any property while issuing tax and value certificates, the market value of the given properties should be changed appropriately.

· In order to avoid the risk of such violations in the future we proposed that the notary:

· Inform their staff that no public document may evaluate or consider any fact or circumstance, or include any conclusion about which, or, about the basis of which the authority may not have legal and official notice;

· Draw the attention of their colleagues to the fact that public administration bodies may not support discrimination against individual persons or social groups even by indirect means;

· Consider the need for training in human rights and data protection rights.

The notary accepted our proposals.

One complainant asked us to take action concerning the fact that determining the minimum wage by educational qualifications could represent indirect discrimination at a state level against Hungary's largest minority, since this fact restricts this social group to the lowest wages band in a proportion far higher than their actual percentage of the population. In the complainant’s opinion the responsibility of the political sphere is particularly great in this question because due to the discriminative nature of the school system in Hungary a very small proportion of Roma can gain the educational qualifications that qualify for a higher (minimum) wage.

We informed the complainant that employers tend to use the lowest compulsory minimum wage for employees with low educational qualifications (among them a high proportion of Roma), however the differentiated minimum wage taken in itself does not represent discrimination and is not unconstitutional.

For should the differentiation not occur in the regard of a fundamental right, then unconstitutionality of the differing regulations can only be established if it infringes the right to human dignity. In the course of its current practice the Constitutional Court ruled that differentiation between legal entities was unconstitutional if the legislator had arbitrarily differentiated between legal entities under the same regulatory sphere with no reasonable grounds.

We drew the attention of the complainant to the fact that educational qualifications are recognised to be a decisive element in terms of wages, thus the connection with the lowest compulsory minimum wage is not arbitrary, i.e. it cannot represent discrimination. Discrimination could only be established if a different minimum wage were tied to the same educational qualifications based on origin (i.e. in terms of the work relation arbitrarily, without reasonable grounds).

Determining the minimum wage is in effect intervention into the legal relation between the employer and the employee in order to protect the weaker party: In the employment contract the parties agree on a personal basic wage, which is the object of free bargaining, However it is a legal provision that the personal basic wage be as high at least as the minimum wage. The differentiated minimum wage is (theoretically) a case of the government wishing to offer different levels of protection to those with different educational qualifications. (If the regulations are the same within an identical group, then, as we explained earlier, it is not unconstitutional.)

3. Complaints concerning procedures of the police and detention bodies, as well as the activities of appointed defence counsels

In 2005-ben – as in recent years – our Office received several complaints, in which grievances were raised concerning procedures and measures of the police and detention bodies. The majority of the complainants suspected that the grievances they had suffered could be traced back to their Roma origin.

In recent years numerous studies have dealt with the measures of the police, the judiciary and the detention bodies affecting the Roma minority, conflict situations arising as a consequence of their procedures and the attitude of their staff. The majority of such studies indicate that the principle of equality before the law is infringed in their procedure. In many cases suspicions arise of different treatment applied towards Roma and non-Roma accused, and there instances when the authorities can be caught acting in a prejudiced way. Sociological and criminological studies, therefore, support the suspicions of the complainants that the authorities often act discriminatively in their procedures towards the Roma minority.[21]

During our investigations in this sphere in 2005 it was only possible to prove that the complainant had suffered a disadvantage in connection with their origin in one case. In our opinion it is a reflection of the complexity of the problem and the difficulties of the procedure of proof, or perhaps the fact that the proceeding bodies place ever greater stress on preventing and eliminating discrimination.

For example in the case of the police, cooperative programmes have been organised for years in order to prevent instances of discrimination and legal violation against the Roma minority.

In the majority of cases we promote redress of the complainants’ grievances by providing guidance and by involving free legal representatives, yet there have been cases where as a result of our involvement we have managed to obtain more favourable measures for the complainant than originally.

We shall highlight two cases received concerning police procedures.

One complainant turned to our Office on the grounds that his family had been the victim of frequent abuse by two members of the local police station. In the complaint he said that his house had been searched on several occasions without any grounds, and members of his family had been detained at the police station for 14-16 hours on the basis of unfounded accusations.

We requested information from the head of the police station, who set out the procedures conducted, and currently being conducted against the family. On the basis of this information it could be established that the staff of the police station had carried out their work according to the operative rules of law, and that violation of the law had not taken place. In addition the officer in command also gave information that in the cases conducted against the family the competent city prosecution office was exercising increased supervision, and had not found any illegalities or violations of the law.

Another complainant sent us a letter because he objected to the fact that staff of the police office had carried out a house search in his flat as well as the association run by him. In his opinion the measures taken by the police were unfounded and in violation of the law.

In order to investigate the complaint we turned to the county police chief, and received the following information on the case:

The local police station received a report that the windows of a shop on the town’s main square had been broken by two unidentified persons, thereby causing significant material damage. The police officers concerned received concrete information that the two persons against whom there was reasonable suspicion were residing in the flat of the complainant (The father of the suspected men informed the police of their whereabouts). The police arrived at the house of the complainant in order to locate and detain them. The complainant, however, denied that the sought persons were residing in his flat and was unwilling to allow the police officers entry. He also raised the grievance that the police officers appeared holding rubber truncheons.

The police commissioner established that the police officers had in fact acted assertively towards the complainant. They warned him that if he did not cooperate and continued to prevent their procedure then they would use measures of force. According to the police commissioner being prepared with rubber truncheons was justified given that there were thorough grounds for supposing that those who had committed a criminal act of violence would attack the police officers, put up resistance, or attempt to escape.

At the personal meeting following the case, the complainant accepted that according to section 39 (1) b) of the XXXIV Act of 1994 on the Police, police officers may gain admission to private homes, or make forcible entry without an authority resolution if the aim of the measure is to detain and arrest a suspect. After having received this information, the complainant only objected to the tone taken by the police officers. Following the investigation into the complaint, the police commissioner established that the police officers concerned had reasonable grounds for appearing at the flat, and that they had acted lawfully and professionally, however he drew the attention of the police force to the need to conduct their work at all times in accordance with the laws and other rules of law, in a civilised manner and in respect for civil rights.

We received one complaint concerning the work of the prosecution service.

The complainant who was committed for trail objected to the fact that the prosecution service had only permitted him to remain contact with his wife, and had regularly rejected his plea to be able to see his children.

Under the applicable rule of law, the right to correspondence, to receive visitors and to receive packages of pre-trial detainees may be restricted in the interests of the effectiveness of the criminal trial. On the basis of the legal provision we turned to the city prosecution office for guidance. In the opinion of the head public prosecutor, given that pre-trial detention is a measure of force that lasts for a relatively short period of time, as set down in the Penal Code, he did not consider the presence of children (minors) to be justified in the detention institute. In addition, in his opinion in such cases the proper moral development of the children and their overriding protection have to be placed in the foreground even if this results in the restriction of the father’s needs to a certain extent. According to the standpoint of the head public prosecutor, the presence of children (minors) in the detention institute would not serve this aim. When permitting such contact, other reasons also have to be taken into account such as the capacity of the detention institute, which is limited. We did not consider further measures to be called for in view of the fact that violation of the law had not occurred in the course of the head public prosecutor’s decision, and the pre-trial detention was ended meanwhile.

In 2005 we also received a large number of complaints concerning the procedures of the detention bodies. As in previous years, the largest number of complaints was related to pleas to be transferred. In the case of such pleas we turned every case to the Detention National Command. We can establish that where it was possible to fulfil pleas for transfer, this was done on each occasion. In the case of rejection they gave an acceptable, detailed explanation for why the plea had to be refused.

The complaints below concerned the behaviour of staff of the detention institutes:

One complainant objected to the behaviour of the nurse in the detention institute. He said that when he had described his ailments the nurse had shouted at him and not given him medicaments to ease his pain. He complained that the nurse had issued a disciplinary form because of what happened, due to which he could not receive a reduction in time towards his conditional release.

We turned to the Detention National Command for further information. From the “Ambulant Diary” on health care given to the detainees, sent by the command, it could be established that prior to the day in question the complainant had already received treatment. The nurse, knowing the medical history of the complainant, did not consider there to be cause for administering one-off medicine or to call a doctor on the basis of his condition at the time. (Later the specialist recommended that his psychological state by settled through administering medicine.)

According to the Command it was not true that the nurse had issued a disciplinary form, or threatened punishment, since only the commanding officer and members of staff determined by him can issue disciplinary action.

The disciplinary procedure was ordered by the institute’s commanding officer, and the complainant was disciplined with ten days of enclosure in a private cell for affronting members of the institute’s staff. It could be established, therefore, that the nurse was not connected to the unfavourable judgement of his conditional release. In view of the contents of the opinion given by the instructors in the prison, the institute’s commanding officer sent the submission to the county court with a negative motion. The court rejected the possibility of conditional release with a binding ruling.

Another detainee requested our help concerning a disciplinary case in interpreting the regulations of the institute. In his opinion he had not committed any form of behaviour that would justify disciplinary punishment.

We called upon the Detention National Command to analyse the regulations and investigate the case. Whilst judging the disciplinary procedure to be lawful, the Command acknowledged that the section of text in the regulations could give rise to misunderstandings, so following investigation of the Commander gave instructions to the commanding officer of the detention institute to make more precise and amend the institute regulations of the institute.

One client complained by letter that the librarian instructor had discriminated against him and his cell mates, because she had not allowed them the twice monthly two hour visit library visit as set down in the institute regulations.

In order to investigate the complaint we turned to the director of the detention institute who informed us that on the basis of the computer records, the complainant and cell mates had regularly visited the library, in accordance with the regulations. In addition the librarian instructor had offered them extra library sessions on several occasions (for example in the case of missed sessions because of illness), which they took advantage of. In the absence of a violation, we did not judge further measures to be necessary.

Complainants frequently objected to the activities of their appointed defence counsels.

According to the results of a survey [22] 42.6% of Roma detainees were unsatisfied with their defence counsels. Appointed defence counsels undertake the defence of those who do not have the resources to hire their own counsel. Experiences demonstrate that appointed counsels are present in a much smaller proportion and less active in the investigative stage of the criminal procedure than their authorised colleagues. There are cases of the pre-trial detainee only meting with their appointed legal representative at the court hearing. (We should note that naturally this problem does not only affect Roma persons.) Research conducted by the Hungarian Helsinki Committee in 2005 verified that the level of legal help given by appointed defence counsels in many cases does not meet the constitutional and international legal requirements of effective defence. One reason for this is that the remuneration of appointed defence counsels is only a fraction of the marker price for defence counsel services, but the effectiveness of the system is also impaired by structural problems. “Under the current rules, for example, in the course of the investigation, the investigative authority selects which lawyer is to defend the suspect in need as appointed defence counsel. So the body that determines the person of the appointed defence counsel, which, given its procedural role, has a counter interest in the effectiveness of the defence counsel’s work.” [23]

Often the complaints request help in discharging their legal representation. According to the provisions of the Ombudsman Act we have no such possibility, so if the necessary conditions are met we recommend that such complainants turn to the Anti-Discrimination Roma Customer Service Network, giving a name and contact details for the representatives there.

6. Minority lay judges in the jurisdiction? New rules for selecting lay judges

We are aware that the Ombudsman Act categorically excludes investigation into the judging of the courts, on the grounds that criticism of court decisions in concrete cases, or even comment could infringe the principle of judicial independence.

However in our report we cannot ignore the fact that a very significant proportion of our complainants – often in complaints composed in detention institutes– claim that they have been convicted through an error of the court due to the court’s bias or prejudice against them. Naturally we cannot take real measures in these cases, and in view of the circumstances outlined in the complaints as a general rule we forward such complaints to the National Jurisdictional Council or to the president of the Supreme Court.

The phenomenon in itself deserves a short look at attempts to face such "suspicions" in Hungary, and in countries generally taken as carrying weight.[24]

It is well-known that in the majority of Anglo-Saxon type legal systems – above all in the United States – judgement by jury is used, which essentially meets the principle of “participation of the people” in the dispensing of justice. Phrased another way this means that a body consisting of amateurs announces the “verdict” on the question of guilt. (The members of the jury naturally have to be impartial and beyond reproach.)

In Hungary the lay judges represent a similar institution in the judiciary (using earlier terminology: “judges of the people”). In the vast majority of cases this means that alongside the professional judge there are also two non-professional judges selected by the local governments taking part in bringing a verdict.

In view of this, the question naturally arises of whether it is not possible or necessary to create legal conditions for Roma lay judges to participate in bringing rulings when the accused or complainant in the criminal proceeding are of Roma origin.[25]

In connection with this it is worth mentioning the amendment to rules of law for selection of lay judges.

When the Minorities Act was amended, the set of tasks and powers of minority self-governments were extended to include the right to select lay judges for the local courts. In the lack of detailed rules, however, it is not clear at present how this will work in practice, and according to what criteria the lay judges will be selected. Whilst section 25 m) of the Minorities Act states that “local minority self-governments may take part in the selection of lay judges for local courts”, section 30/C of the Minorities Act expressly states that, “local minority self-government in the sphere of non-transferable tasks and powers decides…on the selection of the lay judges.” Thus in the text of the law it is not expressly determined what the task of the minority self-governments is or exactly what role they play the selection of lay judges.

In view of the fact that we are not aware of any analysis or impact study that would result in the revaluation of the role of the lay judges according to the above, within the scope of this Report we shall merely raise the subject.

If a reduction in the number of complainants concerning the judiciary could be hoped for through this measure, it would by all means be worth examining this topic in greater depth.

Chapter IV.

Social problems and poverty – from the point of view of the Minorities Ombudsman

1. Infringements concerning the fundamental constitutional right to social security in general

In 2005, similarly to in previous years, complaints concerning social, housing and children’s rights were received almost exclusively from members of the Roma minority. In their complaints they requested our help in solving the most severe problems in their daily lives. We frequently investigated these cases on-site, so we personally came across the various forms of poverty and social exclusion in concrete life situations.

The majority of complaints came from disadvantaged regions. Often the Roma complainants turned to our Office in despair as their last possibility.

According to some researchers [26] today ethnic affiliation represents one of the greatest risks of poverty. A so-called “underclass” develops, particularly if poverty is concentrated within an ethnically definable social group. Many Roma live in extreme poverty, physically separated or segregated from non-Roma and those who are better off. In the opinion of researchers they have little chance of ever escaping from this situation, and the same fate awaits their children too.

The professional report of one social civil organisation raised serious concerns. These problems are also reflected in the complaints we dealt with.

„A large proportion of poor people do not have the chance to earn a living through working…in many places social workers are lacking, particularly in smaller settlements, elsewhere there are social workers but they are almost without resources. Benefits are not a solution in the long term, however if there is no work then subsistence and housing support has to be raised at least to a level whereby poor people will not lose their houses, not be forced into a ghetto and have access to socially minimal resources. Without this abject poverty becomes catastrophic.”[27]

The question is what we can do and by what means we can take action to remedy grievances concerning the situation and living conditions of the disadvantaged Roma population.

In social cases we primarily examined first whether minority rights had been violated by the authorities or public service institutions, and whether they had violated the principle of equal treatment. In most cases it was difficult to prove whether the complainant had been discriminated against because of their minority origin. However in many cases it could be clearly established that children’s rights and constitutional rights to social security, legal security and legal remedy had been violated. In view of the complex role played by the Parliamentary Commissioner we judge it important, even in the absence of minority discrimination, to draw the attention of authorities and public service institutions to the need to terminate and prevent constitutional breaches and abuses relating to legal security, social rights, children’s rights, as well as human dignity, and the right to the highest level of physical and mental health.

In social cases there is also a need for us to offer guidance, to reinforce cooperation and to act as mediators. We are convinced that we must alleviate the social exclusion and marginalisation of our Roma complainants through all means at our disposal.

2. Some complaints concerning benefits

In recent years we have received many letters requesting material support and complaints objecting to the practice of granting benefits of local governments.

Complainants often requested that we offer financial or support in kind: for medicines, firewood, settling utility debts and interim help etc.

Our Office does not have at its disposal resources that would enable financial help to be given to persons in need. To solve the financial problems of complainants we predominantly turned to local governments. In certain cases providing our clients with guidance acted as a reassuring form of assistance.

In 2005 we received a letter in which our client complained that their application for benefits had been rejected orally by an official at the mayor’s office without appropriate guidance being given.

When we examined the concrete case, we established from the documents at our disposal that the application for benefits of the complainant on contacting the mayor's office had not been set down in writing, and the complainant had not been informed of the possibility of having their application set down in the official records. By disregarding the form of resolution they deprived the client of the right to be informed of the possibility of legal remedy or to make use of this entitlement. Our proposal was accepted, in which we recommended that the office of the local government pay increased attention to informing clients, to legal security and to ensuring the constitutional right to legal remedy.

In earlier reports we already mentioned the fact that from February 15, 2003 onwards local governments can not declare regular social benefits or allowances for the elderly as an inheritance burden. The representative boards received a deadline of August 15, 2003 to accordingly modify their social decree in accordance with the change in statutory regulations.

Our experiences suggest that the revision of regulations in numerous settlements had not take place, so we turned to the Minister of the Interior and requested that the public administration offices conduct a comprehensive legality audit of the social decrees. Since our recommendation did not lead to results, we requested that the Prime Minister take measures, indicating that the legal fate of inheritance burdens, that have already been reported by local governments but not yet enforced towards inheritors, is still unsettled.

In connection with unsuccessful applications for regular social benefits, in many cases the problem arose that the otherwise entitled citizen could not receive the support due to their failure to satisfy a prescribed cooperative obligation.

In programmes helping integration many types of cooperative obligations can be prescribed. Our clients mainly had not satisfied their cooperative obligations concerning the job centres. We assisted them by supplying appropriate guidance or by seeking out the family carer in these cases. In one case during on-site procedure we asked the family carer to accompany the client to the job centre on the first occasion.

In many cases our clients complained that their family income was insufficient to buy even the most necessary things, so they applied for communal work or claimed higher support.

In general these families have received all the forms of support that can be given on the basis of central and local regulations. Their complaints prove that social and child welfare benefits are not sufficient to enable them to “break out” of their current situation and change their housing conditions of their own accord.

There were also examples of complainants not claiming benefits that in fact they were entitled to.

The cause of this was usually lack of information, but there were also instances of complainants not requesting benefits out of “pride”, so that the village would not “speak ill of them.” For the most part these clients turned to us, so that they could be accepted onto local public utility or community work programmes. However, the numbers that can be employed through public utility or communal work are determined by the financial possibilities and the funds that can be applied for. Due to financing constraints the number of those employed generally falls below what the local residents would require. It is also a problem that precisely those clients who were in the most severe situation are left out of those programmes on grounds of unworthiness (for example: because they haven’t done anything to improve their own situation).

A mother with three children living in a town in Pest County requested help because of restriction to her water supply. She complained that several times she had been asked to pay water-charges that she had fallen behind with, but as she could not settle the problem of her own resources, she turned to the local government for support. However the local government failed to help. In the course of the investigation several other problems became known, including the fact that the local government had deducted the accumulated debts from the social support of the multiply disadvantaged family, which was living under poor social circumstances and raising seriously ill children. In order to clarify the situation the complainant requested an investigation into the payment of local government support. Since her complaint was joined by that of another family living in the same town, we examined the cases together, extending our investigation to the general benefits practice of the local government.

When we investigated the deductions, it could above all be established that the local government wished to collect various debts by introducing a form for this purpose. By filling out this form the "debtor" made a statement that the local government could deduct the following from regular child protection support, nursing fees and regular social support for unemployed persons of working age: interest-free loans for repairs due to flood damage, other interest-free loans, tax liabilities, accumulated arrears water and rubbish removal fees among “possible debts”.

On the basis of our investigation, we established that deducting debts from the child protection support is a particular violation given as it encroaches upon the constitutional rights of children to protection and care. The aim of regular child protection support is to promote the material support of socially disadvantaged families, the care and upbringing of children in a family environment, and to protect the children from having to be removed from the family. Therefore this support has to exclusively serve the interests of the child. It can only be allotted to this, and not to settling the potential debts of the parents. This is reinforced by section 18 (1) of the XXXI Act of 1997 on Protection of Children and Guardianship Administration (Child Protection Act), which clearly states that the representative board of the local government puts regular child protection support and exceptional child protection support at the disposal of children.

We initiated an investigation by the Ministry of Interior the previous year concerning an earlier case of deducting outstanding debts from child protection support. That investigation was completed through the public administration offices. According to the Ministry, the public administration offices drew the attention of legislators to the need to establish correct legal practice through a meeting of notaries.

Despite this in 2005 in the town in Pest County they continued to use the illegal practice, the Ministry of Interior established as the result of our latest proposal on the matter. According to their exposition of facts, there had been cases of such illegal “debt collection” in other towns in Pest County and several towns in Jász-Nagykun-Szolnok County.

The given leaders of the Public Administration Offices, exercising their right of legal audit, drew the attention of the local governments to the use of cession occurring in contradiction to its intended purpose. This should be the appropriate guarantee that in future deduction of debts from local government support, in any case generally of a low level, not occur.

Another significant experience of the investigation was that the local government rejected applications for support to settle accumulated home maintenance-related arrears, citing their straitened social budget, and arguing that the local social decree does not regulate the conditions for awarding home maintenance support. The local government did not examine the applicants’ eligibility for the home maintenance support that is paid regularly each month.

“The concept of social security consists of numerous elements, and preservation of the ability to maintain a home cannot be excluded from these. A home satisfies one of the fundamental needs of citizens. In recent years expenditure related to maintaining a home has increased significantly, for example due to a considerable rise in energy prices, drainage and water fees and the introduction of local taxes, to the extent that they exceed the financial capacities of a significant layer of the population” – the Constitutional Court pointed out in its 2002/B/1991. AB resolution.

The complainants clearly submitted applications for settling their regular expenses concerning home maintenance (water, rubbish disposal, electricity bills), whereas the local government did not judge their application as being for house maintenance support, but for temporary support, and allotted them support in the form of an interest-free loan, despite the fact that section 16 (3) of the IV Act of 1957 on General Rules for State Administration Procedures (GRSAP Act) states that applications must be judged according to their content.

When judging the applications, the decision-maker left out of consideration the provisions of the XXVI Act of 2004 on Amendment to Certain Acts of Social and Health Care, which introduced normative home maintenance support.

If they had proceeded lawfully the local governments should have applied section 38 of the III Act of 1993 on Social Administration and Social Provisions (Social Act), which sets out detailed rules for home maintenance support. In section 1 a) it states that local governments are to offer home maintenance support to those who are eligible according to the conditions set down in the Act.

According to the intention of the legislator, the normative home maintenance system makes access to and level of support predictable to citizens. In addition it ensures equality before the law since payment of support has to take place in all settlements according to the same rules. This principle was not fulfilled in the investigated case. The local government informed the clients orally and in writing (in justification for the decision of rejection) that regulations for home maintenance support do not feature in the local social decree, so there is no possibility for claming home maintenance support.

The Constitutional Court took a standpoint on a similar case in an earlier resolution. According to this, “There is no lawful obstacle to local decrees including the provisions of a higher-level rule of law word for word. Nor is it unlawful if the local decree does not repeat the provisions of the higher-level rule of law, for the provisions of the higher-level rule of law are valid in themselves, even if they have not been transferred word for word or included in a lower-level rule of law”[28].

The Social Act also establishes forms of support for which the conditions of being awarded are determined by the Act itself. The normative home maintenance support investigated in connection with the complaint, belongs to this sphere.

In the case of the normative home maintenance support, the legislator excluded the possibility of entrusting the establishment of support to the consideration of the local government. The rule of law determines the conditions under which support has to be given to the person in need, and the proceeding body can merely investigate the existence of these conditions.

Nor can the viewpoint of the local governments be accepted, which cites the tightening budgetary constraints when awarding or rejecting support. The basic function of the local government is to attend to the organisation of social provisions, in the sphere of local public services.

Under section 1 (5) of the Local Government Act “at the same time as defining the compulsory local government tasks and competences, the Parliament shall provide the necessary financial conditions for these to be carried out, and decide on the extent and means of the budgetary contribution”. The legislator has provided that the local government may reclaim 90% of the awarded normative home maintenance support, as the state provides the cover for this.

Our investigation pointed out that the local government by informing the applicants that there was no home maintenance support, by not providing information concerning normative support than can be claimed on the basis of the law, and by not awarding this on the basis of the applicant’s entitlement, disadvantaged the client and violated their right to a fair procedure. We also established that the right of the complainants to social security was violated because the authority in question, following submission of the applications, did not examine the circumstances of the applicants in terms of their entitlement to support.

We also experienced further violations when we examined the local government’s procedure concerning the interest loan support. The local government rejected the applications for interest-free support in the investigated cases because those concerned were in debt to the local government. According to the local social decree the local government may not award one-off support to those in need if the applicants have public debts or other existing debts. The local government only supports those families who do not have any public debts. Applying this principle, those persons who have not paid back loans may not receive any other social benefits until they have settled their public debts.

We dispute the validity of this provision on several grounds. Regulations of such content are unlawful because their two generalised formulation results in lack of legal security, and the provision cited conflicts with the contents of the Social Act. This conflict, however, is contradictory to the basic principle stated in XI Act of 1987 on Codification, according to which no rule of law of lower level may come into conflict with a higher level rule of law.

Further violations follow from law-enforcement attitude that features in the individual resolutions of the local government. Those asking for local government help for settling utilities arrears were denied support precisely because of their debts. With this, however, the local government further disadvantaged those in need who were already in a difficult situation. It made the family responsible for the fact that their debts had accumulated and did not take into consideration the fact that the arrears had arisen due to the difficult social circumstances of the applicants. Through its decision it excluded debtors from receiving support, with the aim of indirectly forcing them to settle their debts. This procedure, however, clearly results in the worsening of the situation of those who are already in need. The fact that those in need are in debt should not be set down as a condition for excluding them from support. On the contrary, the local government is expected to help those living under difficult social circumstances to solve their difficulties.

We closed our investigation by establishing that in the cases explored material and procedural rights violations had taken place that had indirectly resulted in the worsening of the social problems of vulnerable families unversed in the law who belonged to a minority community, and deterioration in their life quality.

In reply the mayor informed us that the local government had acknowledged, accepted and taken notice of our proposals. At our recommendation the competent Public Administration Office kept track of the termination of the violations. By the time of preparing this Report, however, we were not able to receive information about whether the local government had paid the support that had been omitted to the family, and to all those whose applications had been rejected on similar grounds. As a result we shall continue to track this case.

Reviewing the benefits-related complaints from the past year we have to agree with the opinion of sociologists that the decentralisation of social services has not only decentralised the means of distribution but also the problem of poverty in itself. The social administration of justice set down framework-style rules, entrusting the development of concrete principles of benefits to the internal bargaining processes of local communities. With this a social problem automatically became a small community matter, as a consequence of which conflicts between the poor and non-poor can be defined as internal operational faults of the given community.[29]

In the course of investigating complaints on social questions often we were restricted to analysing the decrees approved on a local level concerning benefits, the practice of administration of affairs, and in the absence of a constitutional violation requesting the local government leaders to take fair-minded measures to remedy the problems of their Roma clients.

In the past year, however, several rules of law were amended with the aim of changing the benefits system. The CXXVI Act of 2005 on Reorganisation of the Family Support System through systematic, comprehensive changes to the family support system wishes to divide the budgetary allowance in a more targeted, fairer and more effective form that until now. According to the justification for the Act, the available resources will be redistributed and supplemented, as a result of which – maintaining the differentiation based on number of children, family type, and disabilities – there will be a significant rise in the total sums of family allowance. One of the aims of the correction is to support families with many children on a law income to a greater extent.

The CLXX Act of 2005 modified the III Act of 1993 on Social Administration and Social Services. The rule of law, in connection with the comprehensive transformation of the family support system, set down as an aim the creation of a form of support that takes into account family type and which encourages those living off benefits to take on work and to be active. In the future regular social benefits will be transformed into social support offered to adult persons without income and their entire family. Taking account of the size of the family supposes the introduction of a so-called consumption unit adjusted to the outlay structure of the family.

The amended rules of law do not a clear guarantee that the planned aims will be realised. We will only find out whether the new provisions in fact contribute to the reduction of social inequality and the formation of a more flexible and just benefits system in the course of legal implementation.

For this reason when we gave our opinion on the draft bills for amending the indicated rules of law, we recommended that at the time of their going into force (in 2006) the effects and consequences of the new measures should be tracked and continually monitored, with proposals for their amendment or correction where necessary depending on the results.

It is however clear that even a benefits system working more flexibly and effectively cannot solve the problems of those living in long-lasting exclusion. The deepening of the gulf between the poor and the non-poor is connected to macro-level social problems and social causes, to change which even the formation of a more modern social services system is not sufficient. The problem of an ever worsening situation and the lasting falling behind of the poor can only be treated in its economic, labour market, regional development, educational, welfare policy interconnections.

3. Thoughts about housing problems – based on concrete cases

In recent years many clients turned to us to solve their housing problems. The complainants are typically parents with many children, often unemployed, and can only supplement their income from various forms of benefits through occasional work.

The Constitutional Court in resolution 42/2000. (XI. 8.) AB posited that according to article 70/E of the Constitution the right to social security includes the obligation to provide through the state the subsistence minimum through the sum of social provisions. Concretely defined partial rights cannot be inferred from the guarantee of the subsistence minimum. It follows from the above that no obligation, and therefore responsibility can be established in terms of ensuring “the right to housing.” The obligation of the state only extends to providing accommodation in the case of homelessness and emergency situations directly threatening human life.

How the housing problems of the poorest Roma population are handled on a local level depends on the consideration of the representative board and the current budgetary resources and financing possibilities. In our experience the forms of support for housing set down in local decrees primarily offer help to those citizens who have sufficient resources of their own and are credit-worthy i.e. who are employed in some form on the legal labour market.

In some cases as a result of our investigation local governments offered help towards improving the living conditions of the family concerned through fair-mindedness.

For example by means of an application the complainant was allocated a building plot at an advantageous cost. In this case procuring the outlay necessary for building caused difficulties, of which the family had no realistic chance without claiming a welfare allowance.

There have also been cases where the complainant themselves attempted to improve their own housing conditions, and claimed local government support to do so, but in the end was unable to use this support appropriately First the complainant was allocated a cheap plot of land, but did not satisfy the obligation to build. Next he received non-refundable housing support to purchase a flat and gain ownership, however later the flat was auctioned off because of the family's accumulated debts. The local government interpreted this as having already helped the family in solving their housing troubles on two occasions and therefore deemed the members of the family ineligible for further support.

To avoid such “traps” we recommended that family carers be involved as early as possible into treating housing problems. This should include surveying and debating which solution is the most realistic of the conceptions for improving the family’s living conditions, taking into account individual life circumstances, and what local forms of support and loans the family can apply for. The question, however remained unanswered of what the family help centre or the child welfare service can do to change wretched living conditions that infringe human dignity, once the family helper has established that the given family does not have any form of savings, its members are unemployed and are not capable of changing their severe living circumstances of their own resources.

In smaller settlements problems were caused by the local government not having social housing at its disposal, or the fact that each of the few social flats was already inhabited. In larger cities and in the districts of the capital social housing could only be claimed through application. Due to the large number of applicants even the families most in need can generally only move into social housing following a long wait. Generally a plan to extend social housing features among the long-term goals of local governments. This, however, involves a significant financing burden, and can only be implemented in the long-term, which does not solve the current housing problems of the applicants.

In the past year too we received complaints from those struggling with housing problems who could not submit valid applications for social housing because they has entered their current house as “squatters”, and the decree of the local government excluded those from making applications who had moved into local government housing of their own accord without legal title and as trespassers.

Such provisions violated the right to legal security, and the principle of equal treatment was also at risk. In 2005 there were several resolutions of the Constitutional Court that qualified as unconstitutional and annulled those provisions of the housing decrees of Budapest districts, according to which tenancy contracts cannot be signed with squatters. The Constitutional Court earlier established that, “District representative boards in their decrees are not entitled to bind the letting of local government housing based on social, income and property situation, to other provisions unrelated to social situation, beyond social, income and property conditions”. [20/2000. (VI. 16.) AB Constitutional Court resolution, ABH 2000, 434, 437]. Citing the above, we also proposed an amendment to the local decree in this given case.

Our experiences show that it is a general phenomenon that local governments do not wish to cooperate in solving the housing troubles of those families that have earlier settled their housing needs “autocratically” by occupying local government property. A significant proportion of local governments, citing the protection of their property rights, have created a seemingly lawful reference point, that is in fact unconstitutional and moreover due to the lack of flats also unsuited to fulfilling the desired aim, i.e. cutting back on squatting.

In the past year in a joint report with the Parliamentary Commissioner for Civil Rights we requested that the Ministry of the Interior call upon the county public administration offices to examine the legality of the housing decrees of local governments and to take the necessary measures to ensure that these rules of law only bind the letting of housing in local government property to constitutional conditions (factors related to property, income, social and family circumstances). The Minister of the Interior accepted our recommendation, and later informed us that the Ministry considered a comprehensive legal audit of local government decrees to be justified after the amendment of the Housing Act comes into force in March 31, 2006. According to the Minister’s standpoint, these new provisions guarantee that allotment of local government social housing take place in future on the basis of income and property relations at the time of letting.

We shall also highlight one of the housing complaints in the course of which we established indirect discrimination. We primarily think it important to discuss this investigation in detail because it also concerned the fate of a woman who froze to death at the start of the year during to her lack of housing not being resolved. We hope that the case below will act as a warning to every local government.

The complainants turned to us with the grievance that for several years that had asked the local government for help to reconstruct their house, i.e. to make it liveable, but with no success. The house, however, in our opinion was life-threatening. They were living in a difficult social situation, and were not capable of reconstructing their house of their own resources. The property was on the edge of the settlement, in a segregated street inhabited by Roma families like a slum. In their letter the complainants said that they believed the passive, dismissive behaviour of the local government to be clearly connected to their Roma origin.

In the framework of the investigation we turned first in writing to the local government. On the basis of the documents sent the suspicion of a violation of the law arose concerning several points of the case, so in spring 2005 we carried out an on-site investigation, during which we viewed the property, spoke to the complainants and discussed the case with the mayor and notary of the settlement.

Due to the poor condition of the house we called upon the special building affairs authority to examine the condition of the building and to take the necessary measures by involving a structural engineer.

Following the on-site investigation, part of the building collapsed as a consequence of heavy rains, making the house uninhabitable. The family, that became homeless, was given temporary accommodation in a 10m² heatable military tent.

The problems concerning the poor condition of the house were long-lasting. The leadership of the settlement was aware of the material and social situation of those living there, as well as the deteriorated substance of the property. When the complainants noticed the deterioration in the condition of the house, and found that they were not able to restore it of their own resources, they had a right to trust in the assistance of the local government. However, instead of treating the housing complaints of the family as a complex problem, the heads of the local government limited support to payment of interim benefits of a low value.

Our investigation reinforced the fact that, despite the continual deterioration in the condition of the building taking place before the eyes of the local government, they offered no significant help to the Roma family that was unable to carry out the renovation works of their own resources.

In the course of the investigation we established that the procedure of the local government leaders was objectionable in several points since – according to Act IV of 1957 on General Rules of State Administration Procedures that was still effective at the time, applications have to be considered according to their content – the local government without exception judged the applications of the complainant as for temporary benefits. The local government repeatedly ignored indications of the state of the house, and did not concern itself with the request for help aimed at receiving support for reconstruction.

On the basis of Act LXXVII of 1997 on the Development and Protection of the Built Environment, it is the obligation of the local government leaders to indicate to the special building authority and to propose that it begin procedures if they observe deterioration in the substance of buildings in the settlement, in view of the fact that the building authority is based in another settlement. Although the local government leadership was aware that the property was clearly in use despite its near life-threatening substance, and was being used as a home, they did not initiate a procedure by the special building authority. By omitting to do so, in violation of the provisions of the State Administration Act and the Built Environment Act – they curtailed the powers of the special building authority.

The fact that the local government was aware that the inhabitants were living in the building of deteriorated state as their home for a considerable period, and did not take the necessary measures, and did not cooperate to prevent this situation from developing, jeopardises the human dignity and right to life of the inhabitants as well as the highest level constitutional rights to physical and mental health, and with its procedure violated the right of the complainants to legal security and to a fair procedure.

In view of the fact that the house became uninhabitable at the time of the procedure, we also paid attention to investigating how the local government was assisting in terms of the temporary accommodation of the complainants.

According to section 23 (4) of the Housing Act, “If the house is destroyed because of a natural disaster or a consequence of other grounds, or the building authority has ordered it to be vacated due to threat to life, and the tenant (user of the property) or the body that owns the property cannot attend to the tenant's accommodation, then that is the task of the competent local government or Budapest district government according to the location of the house.”

On the basis of Constitutional Court resolution 42/2000. (XI. 8.) AB, as we earlier indicated, the right to citizens to shelter cannot be inferred directly from the right to social security, however in emergencies directly threatening human life the obligation of the state also extends to providing accommodation.

The local government immediately after the damage to the house supplied the persons who had become homeless with a military tent without equipment or heating.

In our opinion an unheated military tent is not suitable for accommodating people in view of the weather conditions as the time when the crisis took place, as well as the fact that the broken leg of the complainant, as we experienced during the on.-site investigation, was in plaster.

In addition to investigating the above, we paid special attention to investigating the right to freedom from discrimination, in particular view of the fact that the complainants stressed many times that the dismissive behaviour of the local government was due to their Roma origin.

When the Equal Treatment Act came into force the practice for examining discrimination cases necessarily changed. On the basis of section 19 (2) of the Equal Treatment Act the suspected begetter of the legal disadvantage is obliged to prove that they adhered to, or in the given legal circumstance were not obliged to adhere to the principle of equal treatment. The houses of other families in the settlement were also in a poor state.

There was no known case of property belonging to non-Roma being destroyed as result of the local authority for years omitting to initiate the necessary measures set down in rules of law to renovate the building. On the basis of the cited provisions of the Equal Treatment Act the local government should have proven that this neglect was not connected with the Roma origin of the family concerned. The local government did not supply an explanation for why they had not offered immediate help, and for why they had not initiated the building authority procedure then they observed the deteriorating state of the Roma-inhabited building.

The lack of resources cited by the local government cannot qualify as a reasonable and acceptable cause for the failure to offer assistance. (The necessary financial backing could have been applied for from funds determined by a separate rule of law.) The obligation of the local government to take action existed despite limited budgetary possibilities, and citing this can not exempt the local discrimination from its liability concerning discrimination.

It can therefore be established that the local government could not prove that it had upheld the principle of equal treatment. In view of the provisions of the Equal Treatment Act, the omission that caused significant violation of the Roma family’s rights qualifies as direct discrimination.

In view of the above conclusion we recommended that several measures be taken.

In order to avoid further violation of the highest level constitutional rights to physical and mental health, we proposed that the representative board provide further temporary accommodation for the family, and in view of the local government’s responsibility and violations committed, to cooperate in solving the housing problem of the family that had remained without shelter.

In view of the material and procedural law violations, we proposed that the representative board in future pay increased attention to the consistent application of the provisions of the State Administration Act, and the CXL Act of 2004 on the General Rules of Public Administration Procedures and Services, the realisation of the right of those living in the settlement to legal security, and also that the local government leaders should refrain from curtailing the powers of other public administration bodies.

We proposed that the representative board, taking into account data protection rights, survey the situations of Roma persons living in the neighbourhood as in a slum, their social situation, property and income relations, employment prospects and the realisation of children's rights. On the basis of the survey we proposed that the local government prepare a comprehensive programme, and action plan to resolve the living and housing conditions of those living in the settlement in the long-term. Whilst drawing up the programme they should seek all possible governmental or other funding that can be applied for in order to appropriately assist in solving the problems of Roma families living in the settlement.

In order to remedy the violations uncovered concerning the building authority procedure, we proposed to the building authority of the first instance that it launch a comprehensive investigation of those properties that are in a similarly life-threatening state to that of the complainants.

In the interests of remedying the grievances suffered by the complainants due to the local government's procedure, we requested that the Anti-Discrimination Roma Customer Service Network of the Ministry of Justice offer help to the owners, who had suffered damage, towards resolving their property relations and representing their interests, as well as to participate in the negotiations between the complainants and the local government in order to finally resolve the housing problem.

The building authority of the first instance was the first to react to our proposals. It declared the house of the complainants as life-threatening, prohibited use of the building and ordered that the residents be moved out with immediate effect, to be followed by professional demolition of the house. At the same time it contacted the notary of the settlement in order that real action be taken to settle the accommodation of the residents.

In May 2005 the representative board of the local government discussed our proposals, and the resolution of the building authority of the first instance. The board undertook to carry out the demolition work of the life-threatening hose in conjunction with the owner, to attend to the temporary accommodation of the complainant and their family, thus preventing the immediate life-danger. In the same resolution the board entrusted the mayor with cooperating in resolving the matter and in finding possible permanent solutions for accommodating the family, in the knowledge of which the representative board can make an appropriate decision. In September 2005 we again contacted the mayor in writing and requested that he inform us without delay of what measures had been taken based on our proposals in order to help the complainants. According to the mayor, there was no property or temporary accommodation in the settlement that could provide housing for the complainants. Thus at our request they turned to several bodies and organisations to solve the permanent accommodation of those concerned.

In September and October 2005 we spoke with the notary and mayor of the settlement by telephone on numerous occasions. The local government recommended several possible solutions to the family, yet the complainants did not accept any of these.

In November 2005, at the request of the notary, we again visited the settlement, and attempted to mediate between the complainants and the local government heads at a meeting held in the mayor’s office. The local government representatives set out in detail the possible solutions. They suggested a homeless and workers’ hostel in a nearby city, and an empty flat operated by a charity in a shelter in another part of Hungary. The complaints clearly rejected all the possible solutions offered because their family members and relatives lived in this settlement. The notary offered to take them by car to view the workers’ hostel and the empty flat, but the complainants firmly refused to do so. They were only interested in a solution that would provide them with housing conditions in their current place of residence. Several times they expressed the opinion that the local government wanted to move them out of the settlement. As a result of the meeting, we agreed that the complainants and the local government would search for the possibility of renting a flat either there or in the neighbouring settlements, and the local government would offer help towards paying the rent.

According to the information we received, a suitable flat was not found for the complainants, and permanent accommodation had not been found when winter set in. In January 2006, only one person was living in the tent, who died under circumstances not clarified, presumably as a consequence of the cold. Currently the police are conducting a public administration authority procedure into the case.

The case raises fundamental questions. Local governments are unable to handle the housing problems of the most disadvanatged residents due to their lack of means and disinterestedness. In smaller towns and villages there is no social housing, or temporary shelters, and no flats which could be used by those who have become homeless. In our experience, the prejudiced members of the local community are not happy to rent their property to Roma families. In small towns and villages local governments can rarely count on the help of charity organisations. In the case detailed above the local government leaders requested the help of the local churches on several occasions. Although one of the churches in the settlement has an empty building awaiting renovation, they were not willing to rent it to the Roma family despite the personal request of the mayor.

The experiences of this case also prove that the lack of means and financial difficulties of local governments must not result in the indifferent and disinterested treatment of severe housing problems. It is a fact, however, that the current rules of law cannot oblige the local governments – in line with the indicated Constitutional Court resolution – to realise the right to housing on a local level. Without this, the fate of those disadvantaged persons in a similar situation to our complainant depends on the humane approach and personal readiness to help of local government leaders.

4. The role of the building authority and local government in the development of housing conditions

In our reports of previous years we presented numerous cases to exemplify how the omission of the building authority can contribute to the development of housing-related problems, primarily further disadvantaging those persons who are already living amid difficult social circumstances and on a very low income.

We drew attention to the very important phenomenon that in certain settlements it can be presumed that the building authority does not order the owners to fulfil their obligation of maintenance in a resolution because it is aware that the owners are not capable of financing the work of their own resources due to their income and property situation. We also indicated that the procedural practice can have the consequence that the neglected properties become uninhabitable (in several cases life-threatening) sooner or later, which causes serious housing problems to those residing there. Experience shows that local governments rarely offer help to solve such problems, in spite of their legal obligation in this regard.

The situation of those forced to move out of their homes because of lack of renovation did not change in 2005 compared to the experiences of past years. The situation of an elderly married couple who were forced to leave their home when it became life-threatening is nevertheless unusual in that thanks to the local Roma minority self- government, they were able to move temporarily into premises in the property of the local government but being used by the Roma minority self-government.

Their house suffered damage due to the flood in 1999. They received state support to renovate the house and part of the building became inhabitable. The complainant was aware that the house could not remain in such a condition, but without money could not renovate it, so turned to the local government for assistance. Their application was forwarded to the special building authority of the first instance, which in a resolution obliged the owner to restore the house, but in forming the decision ignored the fact the residents could not carry out the work without help, from their pension for the disabled. The proceeding authority did not decide on non-repayable support to be awarded for the restoration. Responding to the repeated request of the complainant, it informed the owner that the claim for non-refundable support had been forwarded to the competent local government according to the location of the property.

A decision of rejection was not received, and a member of staff of the local government mayor’s office merely informed the applicant by letter that there is no such form of support. Section 11 (1) of the 40/1997. (XII. 21.) KTM decree on the binding procedure of the Building Authority was ignored, according to which if the obligor is not capable of fulfilling the ordered obligations due to their income or property situation, and the fulfilment of these obligations cannot be postponed, then the building authority may arrange for the ordered work to be carried out, at the cost and risk of the obligor. Section 12 of the decree establishes further rules concerning the advance payment of the necessary financial cover. For this funds can be applied for – with an obligation to render accounts – from the Central Environmental Protection Fund (KKA) and from the KKA’s revenue from building affairs fines.

In the lack of money, the demolition of the building became unavoidable, which took place in April, 2003. The authority did not cooperate in restoration, but instead watched passively whilst the building became irretrievable, and then as a final solution ordered the demolition of the building. The local government was undoubtedly aware of the property-social situation of the aggrieved. It knew that the family was only capable of creating living conditions to a limited degree, yet made the family responsible for the situation that developed. The local government cited lack of resources, however in our opinion that can not justify the absence of help, since the KKA was available for creating the necessary financial cover, and with this the threat to life and the violation of constitutional rights that entailed could have been avoided.

The investigation finally closed with conclusion that the authorities dealing with the case had not applied the provisions of the cited rules of law in the course of their action. Had the authority procedure been conducted lawfully and local government assistance given, then there would have been a possibility of averting the life-threatening situation, and for the building to be made inhabitable, whereas the proceeding bodies deprived the applicant of this possibility through this omission.

In the course of our procedure we did not only investigate what omissions had lead to the complainant’s situation, but also local government measures after the building became life-threatening. In order that the complainants not become homeless, the minority self-government offered its own office by way of help, which it itself has only received for use by the local government.

The use of the premises was given to the minority self-government by the local government, in fulfilment of its legal obligation. The minority self-government in understanding of the crisis situation allowed those in need to use the office. The temporary solution of the housing problem – although it was an exceptional gesture – is not the task of the minority self-government. When the minority self-government representatives saw that those who had suffered the damage could not move out of the office of their own resources, they indicated to the local government that they would like to use the premises again according to its original function to fulfil their minority self-government activities. They requested that the local government attend to the accommodation of those in need. The local government, however, did not offer help to solve the problem. According to the standpoint of the complainant, this was connected to the fact that he was a member of the Roma minority self-government representative board.

The minority self-government protested that the local government had left them to deal with the crisis situation. This is unacceptable because in matters of social need only the local government can reach decisions. It cannot delegate its sphere of authority to the local minority self-government, because it does not have the powers or financial resources to fulfil such tasks.

In the course of the investigation we established that the local government was obliged to supply accommodation based on section 23 of the Housing Act, however it had not fulfilled this obligation despite the life-threatening situation existing for a considerable time, and left the solution of the situation to the local minority self-government, possibly because of the Roma origin of the aggrieved.

On the basis of the experiences – as so often in earlier years – we established that the perfunctory procedure of the bodies concerned had led to further deterioration of the life circumstances of the Roma family concerned, that their social burdens had further grown, and that their housing situation was unresolved. On the basis of the above it is clear that the authorities in question disadvantaged the complainant and the complainant’s family due to their insufficiently grounded decisions. The local government violated the provisions of the Social Act and the Housing Act with its repeated neglects, but its decision, with which it tacitly took notice that the minority self-government had taken measures in the crisis situation, was unlawful, because it hindered the functioning of the minority board.

At the time of preparing this report we had not received information from the local government.

The special building authority of the first instance agreed with our proposal, and took measures to prevent the neglects experienced and to establish the correct practice.

A resident of one city on the Great Plain also requested the help of the Parliamentary Commissioner for National and Ethnic Minority Rights on grounds of discrimination. The owners of the neighbouring properties, citing excessive building work, initiated measures by the local government against the complainant. The local government ordered the demolition of the construction that was already half-complete. The complainant objected to this because in his opinion the size of several neighbouring buildings also exceeded the allowed level of building, yet their local government had not ordered their demolition. According to his point of view, the local government had consistently applied the rules of law in his case, but not in the case of residents of non-Roma origin living in the area.

During our on-site investigation we viewed the two properties indicated by the complainant. On the basis of this it could be established that in the cases investigated the different building rights were due to the different sizes of the plots. This differentiation in itself is not discriminative. The local government did not differentiate between legal entities on the basis of their affiliation. On the basis of the cases reviewed discrimination was not proven. According to the experiences the allowed size of buildings in the former peripheral allotments was not justified by ethnic discrimination but by the differing features of the building plots. The standpoint of the complainant, however, remained unchanged, and in his opinion the Technical Department of the Mayor’s Office has acted discriminatively towards him. Indicating further properties located in the area, he claimed that the building authority by illegal means had certified for persons of non-Roma origin that their buildings were constructed more than 10 years ago, based on which they were permitted greater building than determined in the rule of law.

The legislator in order to discharge building case authority tasks created the institutional system of building administration. Within the sphere of tasks are conducting checks ensuring the legal security of citizens and community interests concerning building. We therefore requested that the head of the National Housing and Building Office (responsible for the professional direction and checks of building authorities) to clarify the building of the disputed housing plots lying in the given area within an investigation. We also requested that he clarify whether or not the authority of the first instance during authority checks had taken action regarding unlawful building and whether demolition had been ordered in other cases for similar reasons. Following a response to these professional questions, it will be possible to form an opinion on whether the authority acted discriminatively or not.[30]

In 2005 we also received different types of complaints concerning building. In these the complainants did not expressly object to the decisions of the building authority, but to the local government decision determining local building rules. An example is the complaint in which a complainant of Roma origin objected that the village’s settlement arrangement plan had been modified to his disadvantage during the drafting process. During the drafting period the complainant said he had ineffectively indicated his need for an agricultural (allotment) area in his possession to be qualified as residential area, however his interests were not taken into consideration. By contrast the settlement arrangement plan was modified several times at the request of persons of non-Roma origin.

During our procedure we examined what criteria had contributed to the local government decision: whether the complainant (and other families of Roma-origin) had been denied the possibility of later building due to discrimination or because of objective facts.

One of the main problems in the settlement was the high underground water-level and the lack of rain water outlets. The property, where the complainant wished to build, could be found in the area where the water storage lies. This had earlier been damaged and water seepage had caused serious damage to the neighbouring properties.

The question of building in the given area featured on the agenda of several representative board and committee sessions. The debate that developed concerning the inclusion of the area in the inner area of the settlement, the clash between individual and commercial interests, and the political and professional difference in opinion between the mayor and the notary could all be tracked. Finally the representative board brought a compromise decision that a public area strip would be created in the line of the storage, allowing the surrounding area to be constantly monitored, and a belt-ditch, which in the case of problems would protect the adjacent residential area to be built.

On the basis of the documents examined we established that the public administration bodies had been consulted concerning the settlement plan for the village, and the recommendations-opinions of the residents, including the application of the applicant, could be traced and were taken into consideration by the planner and discussed by the committees and the representative-board. At the centre of this debate the question was not the affiliation of the owners of the allotments, but the responsibility of the local government for the drainage of ground water and rain water, and its obligations towards water management that were related to development of the site.

Thus we closed the investigation with the conclusion that as a consequence of the representative board decision the complainant had undoubtedly ended up in a less favourable situation, but this was not due to a discriminative procedure connected to his origin, but to the material-physical properties of the area in question.

We came to a different conclusion in the case where the complainant objected that in the course of building the sewage network the local government had not laid down a drain in the street where his house was situated, making connection impossible. He objected that he had conducted several negotiations with the local governments during which he had indicated that his bathroom could not be used, but in spite of this they were unable to agree concerning the means of waste water removal.

The complainant primarily objected that in contrast to the other streets of the settlement, the waste water network had not been planned in their street, complaining in particular that they were unable to use the toilet, kitchen and bathroom according to their proper use because there was nowhere to drain off the waste water The local government offered a shaft in the public road, in which a pump would be operated with electricity taken from the complainant’s property, however in the complaint's opinion such an offer is unacceptable. In his opinion, unlike for other areas of the village, the local government had not pushed for the building of the network in their street, and had not taken effective measures for months concerning the removal of waste water from the property because the street is in a remote part of the settlement, where they alone claimed this service, however the local government had not offered appropriate help.

In the settlement the construction of the network took place, however in the course of the investigation we were unable to receive a clear answer to the question of why the waste water network was not developed in the given street, and what the obstacle was to solving the removal of waste water in the complainant’s property in the absence of a drain by other means.

During the on-site procedure we surveyed all those properties where the local government solved the removal of waste water not by development of a public amenities network, but with the placement of a collection shaft, as in the complainant’s street. The difference, however, was that these properties were all at a much greater distance from the settlement.

A condition of the realisation of the right to a healthy environment as laid down in section 18 of the Constitution is for residents to live in their own homes undisturbed by polluting, health-damaging effects. The need of the complainant for waste water from the property to be removed is therefore undoubtedly justified. Nor can there be any doubt that the amenities network was constructed in the other streets of the village, whilst the trunk network was not laid down in the home of the complainant.

The investigation conformed the suspicions of the complainant, which was also confirmed by the behaviour of the local government, since following the launch of our investigation it did not make efforts to supply the property with similar services to those of other properties in the settlement, and their measures and the information they gave was inconsistent during the time of the investigation. For this reason we asked the leader of the National Environmental Protection and Water Affairs Head Directorate to examine why this house had been omitted from the public service, by what means waste water could be removed from the property so as to ensure that the complainant not suffer disadvantage when using the public service.

As a result we can recognise that through the cooperation of the head of the National Environmental Protection, Nature Protection and Water Affairs Chief Directorate, waste water from the complainant’s property is directed to the street container by a special method, from where the waste water through enters the recipient gravitational drain an almost 200 m long delivery pipe. The complainant signed a contract with the provider for waste water removal. There was, therefore, a solution, however the question remains of why the local government was only prepared to provide public service of an equal standard to one of the settlement residents through the joint cooperation of several offices.

5. The phenomenon of eviction in terms of the realisation of children’s rights

One particular type of complaints concerning living conditions is the case of eviction. In such cases our help was requested by families raising children (minors), who were threatened with eviction, and could not create housing circumstances worthy of human dignity through their own resources.

According to the experiences of our investigations in general local governments conducted eviction procedures launched due to the fact of squatting or accumulation of rent and utilities arrears in compliance with the operative rules of law and local decrees. In any case the minority ombudsman is unable to dispute the lawfulness of evictions in view of the court verdicts.

In these cases, as in past years, in view of section 67 (1) of the Constitution, according to which “In the Republic of Hungary all children have the right to receive the protection and care of their family, and of the State and society, which is necessary for their satisfactory physical, mental and moral development”, in the course of our procedure we paid special and separate attention to the realisation of children’s rights.

When a family is threatened with eviction and it can be established that otherwise the healthy physical and mental development of the children is ensured in the family, then the children can be regarded as at risk purely in financial grounds. The key principle of child protection is that it is not permitted to separate a child from their family merely because they are at risk on financial grounds. It is therefore unacceptable if as a result of the eviction the child, who until then was living with their family, is offered accommodation in a temporary home for children or with a substitute parent.

Another problem of a general nature is that family help centres and/or child welfare services cannot offer sufficient help to families threatened with eviction. The reason for this is partly the lack of information exchange and communication between the various institutions and authorities. The child welfare service and notary guardianship authority of one local government was informed by our office that the local government would evict a family with several children three days later. As a result of our investigation it was recorded in joint mayor and notary instructions that the child welfare service must in all cases be informed of expected eviction procedures suitably in advance. The family help centres and/or child welfare services are also incapable of offering appropriate help to those in need, because they have no means to solve the housing problems of families seriously in debt. The powers of these institutions only extends to, making an indication to the local government, which is in “one person” owner of the property, initiator of the eviction procedure and perhaps most importantly, the employer and maintainer of the specialist services.

In order to forestall and prevent violations of children’s right due to eviction on several occasions we proposed that local governments prepare comprehensive programmes through which families with children could receive help, in cooperation with family help centres and child welfare services, to prevent the eviction, or if it is unavoidable to plan and provide the later accommodation of the family before the eviction. It is important that these comprehensive programmes should include preventative elements, and in the long term ensure the social integration of the children and families. In the past year several settlements prepared such plans on the basis of our proposals.

In some cases as result of our action we were able to avert the eviction and the housing problem of the complainant’s family was settled, if only temporarily.

A family with 10 children turned to us to raise the grievance that that they were being threatened with eviction since their tenancy contract had not been extended due to their accumulated debts.

In the course of our investigation we require information from the mayor, and during our on-site investigation we visited the family and discussed the matter with the competent experts of the local government.

We established that the eviction procedure had commended in accordance with the effective rules of law due to expiry of the tenancy contract, and the legality of the eviction could not be disputed in view of the court decision.

However, in this case too we paid special attention to the exercise of children’s rights during our investigation.

The notary guardianship office took into protection the 10 children living in the family. According to the documents we received it could be established that taking the children into protection had commenced ex officio, “As a consequence of the unsolved state of housing conditions.”

According to the study of surroundings conducted by the Family Help and Child Welfare Service, the parents had raised their children appropriately. The children had regularly attended school or nursery, their clothing was clean and orderly, their nutrition was satisfactory, they had a close relationship with their parents and their flat was tidy and kept in order.

Based on the on-site investigation, it could be established that the family’s situation following the eviction was without prospects. They were not capable of solving their housing situation of their own resources due to financial grounds. Renting a flat was made impossible not only by the financial troubles but also by the number of family members. The local government did not possess a temporary home for families, whilst shelters maintained by various organisations were unable to accept the family, partly due to lack of space and partly also because of the large number of family members.

In this case it could be excluded that the children were threatened on any other grounds, thus the accommodation of the family would have had to be solved by providing alternative housing that would guarantee that the children could remain together with the parents.

Based on the documents and the on-site negotiations, in terms of the secure accommodation of the children, we considered it a good solution for the family to remain in its current rented property. We therefore proposed that the representative board discontinue the eviction procedure, and take the necessary measures to settle the legal relationship, where necessary by amending the local decree.

As a result of our cooperation the mayor informed us that the "the representative board has approved the termination of the court procedure" that was commenced in order to vacate the property. The legal relationship of the family, however, was not settled, and based on the local decree they became home users without legal title. In the long term it is very important that their legal relationship be settled, but it is also a positive result that they can currently continue to live in the house.

Another complainant turned to our office because he was ordered by the settlement’s Property Management Share Company to leave his 25 m² local government rented property without any comforts together with five children (minors) within 15 days. His application to extend the fixed-term tenancy contract was rejected without justification. The complainant suspected that the rejection was connected with his Roma origin.

In the course of our on-site investigation we first spoke with the complainant, and next we requested information in writing and orally from the local government experts.

The children regularly attend school, communicate well, their clothing is clean and orderly, and the flat despite its cramped nature is appropriately furnished and kept in order. Our experience was confirmed by the written opinion of the Child Welfare Service. They informed us that the need to take the children into protection had not even arisen. The situation of the family was also made more difficult by the fact that of the four children the oldest has a disability, and the complainant cares for him.

The complainant said that they had moved into the flat as squatters, but the local government had later settled their legal relation. He also mentioned that they had come into conflict several times with the residents of the block of flats, and that the residents found his children noise. The complainant suspected that they were not liked because of their Roma origin.

From the complaint letters of the neighbours as well as the notes of the Property Management Rt. it became clear that the majority of the problems were connected with the cramped housing conditions of the family. The solution therefore would be a rented property of greater size. On several occasions the complainant has tried to apply for a new flat, but his application was rejected on all occasions. At times they cited the lack of flats that could be allocated, and at times to the fact that the flat applied for was too small (these in all cases were larger than their current flat).

In this case we primarily investigated whether the termination of the complainant’s tenancy legal relation was lawful or not.

According to the tenancy contract in possession of the complainant and sent by the local government, the contract was signed with proprietary approval for 5 years, based on which the fixed-term contract would expire in 2008. In the contract there was no indication that the tenancy legal relation would be terminated in 2005. Therefore in our opinion the letter concerning the dismissal of the tenancy contract, as well as the letter ordering that the flat be handed over, was unlawful and contradictory to the tenancy contract signed in 2003 and the local decree.

We must note that the correspondence style and approach to the matter of the notary in the given Budapest district was not in line with section 37 (1) of the Act on the Status of Public Officials, according to which the tasks of public officials must be conducted in the interests of the public corresponding to the rules of law and decisions of the guiding body, in a professional, impartial and just way, adhering to the rules of civilised transaction of affairs. We therefore requested the help of the mayor to investigate the housing problem of the complainant and its fair solution.

In his reply the mayor informed us that at the time of signing the complainant’s tenancy contract, due to a typing error its duration of effect had mistakenly been recorded at 5 years. Based on our on-site procedure following the local government investigation the Housing management Committee discussed the case again and restored the tenancy legal relation to 2008. The mayor also agreed that the ground-space of the flat was small in relation to the number of family members, but he also informed us that due to the low number of flats freely available the Housing Management Committee is forced to reject the majority of applications. The tight housing stock does not allow for larger flats to be given to anyone without application. Citing its resolution 42/2000. (XI. 8.), according to the standpoint of the Constitutional Court local governments are not obliged to solve the problem. In our judgement, however, despite this in view of children's rights it is the task of the family to track the situation of the family and to improve their housing conditions where needed or possible.

6. Thoughts about circumstances threatening the realisation of children’s and parents’ rights on the basis of a concrete case

A complainant turned to us with a grievance concerning the realisation of children’s and parents’ rights. In his letter he complained that the settlement’s child welfare service, elementary school and notary guardianship office had taken measures and reached decisions concerning ten children of a Roma family living in the settlement, in particular the temporary re-accommodation of one of the children, that had violated children’s rights. The suspicion also arose that the violations were connected to the Roma origin of the family.

Within the investigation we requested information from the notary, the director of the elementary school as well as from the head of child welfare service. At the same time we also contacted those concerned.

Based on the information at our disposal it could not be proven that the given authorities and bodies had discriminated against the family based on their Roma origin, i.e. affiliation to an ethnic minority.

We examined the case, however, in its complexity, reviewing the measures taken by the child welfare and child protection bodies and authorities. In the course of the investigation the violation of rights concerning the human dignity of parents arose as established partly in the Constitution and partly in other laws.

From the documents at our disposal it became clear that the family had been struggling for a long period with serious difficulties that also threatened the situation of the children.

It is indubitable that the local bodies made significant endeavours to settle the case, with varying results. The connection between the child welfare service and the family according to the documents was contradictory from the first moment. The relation between them was made more difficult by communication problems. In the course of the investigation, the family objected to the reprimanding, calling to account tone taken and that the child welfare service only expressed expectations and called them to account for everything. By contrast the child welfare service considered that the greatest trouble was the lack of willingness to cooperate of the parents and their absence of motivation.

The person of the family carers changes several times, which made more difficult the development and maintenance of an appropriate relationship between the child welfare service and the family. Based on the material sent, the family carers tried applying many different measures but in fact the partnership relationship, mutual trust and acceptance were lacking n both side. The experts had to face a family care task more difficult than average.

In January 2005 a new family carer dealt with the family, who in March 2005 recommended the temporary re-accommodation of the family’s 10 children, because in her opinion the physical, emotional and moral development of the children could not be achieved in the family environment even with assistance. (As grounds for the threat she listed for example: the seriously neglected housing environment; the large number of unauthorised absences from school and various health care problems.)

The district nurse, however, did not agree and did not consider it justified to remove the children from the family. In her opinion the family with 10 children was in a similarly difficult situation to other families living in the direct environment.

The Hungarian child protection system in view of the overriding interests of children gives preference to solutions within the family. The fundamental right of the child it to grow up in their own family. As we have already mentioned in several reports it can be regarded as one of the most important fundamental principles of the Child Protection Act that children may only be separated from the family due to threats posed not solely on financial grounds.

The viewpoint of the child welfare service was that the removal of the children from the family was not recommended on financial grounds. However, in our judgement the indicated problems were connected to the disadvantaged situation of the family and their severe social circumstances. Since 1993 the mother has been constantly on child benefit, while the father supplements his income barely enough for the sustenance of the family with occasional work. Our on-site investigation confirmed that the family was living in difficult circumstances, under cramped conditions and in great poverty.

In May 2005 the notary guardianship office finally decided on the immediate temporary re-accommodation of one of the children, and the other children were taken into protection.

Based on the appeal of the parents, the guardianship office of the county public administration office brought a decision in June 2005 on the case. It agreed with the conclusion of the guardianship office of the first instance that child protection measures were necessary to end the threat to the children. It also established, however that the notary guardianship office had not proven the existence of the grounds which justified the immediate removal of the child from the family, or that the existing grounds for the threat could not be discontinued by other means. It therefore annulled the resolution of the notary guardianship office and instructed the authority to conduct a new procedure.

In our opinion the resolution of the notary guardianship office concerning the immediate temporary re-accommodation of the child clearly infringed children’s rights. In the course of the legal redress procedure the county guardianship office terminated the unlawful resolution, thereby terminating the violations that had affected constitutional children’s and parents’ rights.

Following the temporary re-accommodation of the child the trust of the parents in the child welfare service was seriously shaken. It would have been expedient to change the person of the family carer following the temporary re-accommodation of the child and the other children being taken into protection.. The child welfare service had no such possibility, however, since it operated with only 2 family carers.

Based on the evidence of the complaints we have received to date, the staff of the child welfare services often take the approach of an authority in dealing with their clients, and by threatening them with taking children into child protection (state) care they try to influence the behaviour of the parent, which triggers strong opposition and dislike.

The family concerned did not have accurate information concerning the differing roles, powers and operation of the guardianship office and child welfare service. They thought that that the child welfare service had taken away” their children. Reviewing the documents it could be seen that the authority and service type tasks had in fact been mixed. From 2001 onwards instead of other authorities the child welfare service had constantly informed, warned and summoned the parents. It also caused problems in care of the family that the staff of the child welfare service as a consequence of failures over many years felt increasingly powerless, and therefore often saw the problems of the family as only remediable through "authority style conduct".

Based on the resolution of the county guardianship office, in June 2005 the child was released from the specialist care, and his parent continued to care for his upbringing. The situation of the family, however, is still uncertain, and more recent child welfare and child protection documents have recorded that there is “a problem” with the parents and that they are struggling with difficulties in bringing up the children. What could represent in the long term a solution that that would better realise the interests and rights of the children?

In our judgement the parents need help in their way of life, therefore the development of closer care built on a partnership relationship, through using a so-called personal helper, could improve the functionality of the family. Therefore we recommended to the representative board that they employ a family helper alongside the family, in view of the health state of the 10 children and mother, whose direct and real participation could help the children to be bright up in the family. In selecting a personal helper it is expedient to choose a person, whose activities will not be regarded as interference but accepted as an equal partner. The personal helper would have to conduct their work in cooperation with the local experts, regularly consulting with them.

The child welfare service currently does not have sufficient staff to undertake the tasks of a personal helper. Therefore we asked the Minister for Youth, Family, Social Affairs and Equal Opportunities for assisting in selecting and financing a personal helper.

Alongside the employment of a personal helper we also proposed to the representative board that they investigate the housing circumstances of the family and to assist in submitting the applications of the child or parent by providing detailed guidance and cooperation in preparing and filling out the necessary written documents etc.

In order that the children’s right to study be exercised as fully as possible, we also proposed that the school director's attention be drawn to the need to direct more care towards maintaining the relationship between the family and the school.

In order to solve the problems of maintaining relations and cooperating between the local experts dealing with child welfare, child protection, healthcare, education and social services, and to prevent and discontinue the so-called “burn out syndrome”, and to change prejudicial attitudes based on stereotypes we recommended to the representative board that trainings and instruction be held.

We asked the head of the county public administration office’s guardianship office to track and promote activities taken in the case of the family by the local government and its institutions, the child welfare service and the notary guardianship office, and where necessary to request and make use of the assistance of the National Family and Social Policy Institute as a professional monitoring and methodological institution or other “external” expert assistance.

In our judgement, the resolution of the case was made more difficult by subjective elements and emotions, as well as objective factors. Our impression was that the staff of the local authorities and institutions concerned experienced the appearance of external bodies as interference rather than as a form of assisting cooperation. Their “defensiveness”, however, is connected with the lack of means of the child welfare and child protection bodies and financial difficulties. This individual case also highlights the functional difficulties and regulatory failings of the child welfare and child protection institutional system.

We closed the investigation in this year, thus we have not yet received a reply as to whether the bodies contacted accepted our proposals or not.

7. Worsening living circumstances in the Ózd Hétes slum

In the previous year’s report we gave a detailed introduction to our comprehensive report on the situation of Roam living in slums and slum-like environments, particularly in the Ózd Hétes slum.

Based on our investigation we established that the housing conditions and living circumstances of those living in the slum violate human dignity, children’s rights, as well as the constitutional rights to social security and physical and mental health.

In the segregated section of the city the local government, citing lack of funds, left undone or delayed almost every measure needed, although it should have offered extra support and assistance in order to provide minimum conditions for those living there and to eliminate inequality. The lack of such measures raised the question of violation of the principle of equal treatment. Indirect discrimination occurred when the local government failed to take the necessary public health epidemic care measures, as well as obligatory maintenance of buildings and protection of substance in the part of the city where multiply disadvantaged Roma persons without property are living under unsettled housing legal relations.

In order to remedy the uncovered violations and irregularities we turned with several proposals, recommendations and requests to various central, regional and local bodies. We also recorded that as a follow up-investigation we would track efforts made to improve the situation of the Roma population living in segregated slums, and the implementation of tasks of the governmental Roma program. We also recorded that in the framework of a follow up investigation we would follow with attention the case of Ózd concerning slums and slum like environments.

Correspondingly in December 2005 we conducted an on-site investigation in Ózd. First we visited the Hétes-slum, where we listened to the concrete problems and difficulties of the people living there. With regret we experienced that the condition of the slum, the fate, chances and life prospects of the people have palpably declined in the past year, rather than improved.

The onsite procedure was continued in the Mayor’s office, where we discussed this matter with the experts of the Ózd City Local Government. In the course of the talks problems were raised by the fact that the experts present were enable to give answers to some of our questions, since they come under the competence of the representative board. We therefore turned to the mayor and requested that the representative board of the Ózd City Local Government discuss as soon as possible the proposals made in our report as a separate point on the agenda (this had not even taken place at the time). We proposed that in selecting a time point for the talks that they pay attention to the deadlines for the drawing up the city’s budge, in order that financing needs for rehabilitation of the slums, in particular the Hétes-slum, appear in the draft. There are certain urgent problems requiring immediate action, for the solution of which the Ózd local government can not wait until it acquires external support through application. According to the mayor’s reply the representative board of Ózd City Local Government will discuss an action plan for improving the situation of the inhabitants of the Hétes-slum as a separate point of the agenda in February at the same time as approving the budgetary decree.

In order to significantly improve the situation of those living on the Ózd slum, as we stressed in the report, the Ózd City Local Government is not capable without external, central governmental support. In the past year Ózd City, despite previous “promises” did not receive any form of central support, external help or application funds.

We therefore requested guidance from the Minister for Youth, Family, Social affairs and Equal Opportunities on the question of what assistance Ózd City Local Government can count on from central budgetary funds to implement the planned rehabilitation programme.

According to the reply of the Ministry, in the course of 2005 those settlements with a population under 4,000 had been involved in the housing and social integration model programme for Roma persons living in slums, therefore Ózd could not be connected into the programme. The reason for involving small settlements was that in the Ministry’s opinion in such places there is the greatest need for external help and the lack of local government funds has made the quickest intervention necessary in these places.

The programme continues in 2006, and in the near future a decision will be made on the sphere in which the application will be announced. In 2005 several types of slums were defined, including the so-called city segregates similar to the Hétes-slum., “Thus naturally the possibility is still open that Ózd will be invited to apply”.

The research figures published by TÁRKI in 2004 indicate that there would also be a need for application possibilities that concern larger settlements. They established that as the size of settlements grows, the probability of the segregation of Roma characteristically increases. In settlements with a population under 1,000 housing segregation is characteristic of one in five settlements, whilst in settlements with over 5,000 inhabitants such segregation occurs in roughly one in two settlements (52%). [31]

As we have already indicated in our report, in order to treat the problems appropriately, alongside and in connection with the model housing and social integration programme for slums of the governmental Roma programme, there is also a need for measures of a more general nature, which would promote the economic and regional integration of the slums as segregated “lagging behind” areas and improve the training and employment chances of those living there.

For the implementation of the central professional concepts, however, it is indispensable that the local governments draw up their own programmes. Such programmes should be drawn up and carried out in a complex way, taking into account the interest of the community and individual plans of families. Those living in the slums have to be given the opportunity to get involved in drawing up and realising the programmes, i.e. take active part in forming their own lives.

Chapter V.

New weapons in the fight against discrimination – effects of the Equal Treatment Act

1. Introductory thoughts on the definition of discrimination

Until the end of 2003, the general provision on a ban against discrimination set out in section 70/A of the Constitution and the interpretative resolutions of the Constitutional Court on this subject provided a fixed point concerning the legal definition of discrimination, or in the legal interpretation of social phenomena, events, omissions.

The Equal Treatment Act was promulgated in December, 2003. This was not only awaited by persons, groups and legal defence organisation dedicated to eliminating discrimination, but was also prescribed by the European Union’s 2000/43/EK directive (hereinafter: directive) on implementing the principle of equal treatment between persons irrespective or racial or ethnic origin.[32]

We observed with interest the two years’ experience since the conception and entering into force of the law, since it is clear that the competences of Equal treatment Authority created by the Equal Treatment Act and those of the Parliamentary Commissioner for National and Ethnic Minority Rights overlap, at least to some extent.

The basic principle behind the Equal Treatment Act is that every person has the right to live, think, to realise themselves, preserve and strengthen identity as a person of equal dignity. The Act further declares that the promotion of equal opportunities is primarily the obligation of the state. We know, however, that the conception of the Act is not the close, but the start of a process, since the principle of equal opportunities requires a paradigmatic change in public thinking, vests the Parliament and government with further legislative tasks, and requires a change in attitude in an extremely wide sphere in the various domains of legislation.

Below we would like to outline the most important elements of anti-discrimination law. Therefore, we shall present the typical instances of discrimination that occur illustrated with concrete legal instances and cases. Finally in this same chapter we would like to present the debates that have developed in the course of codification, taking into consideration partly the direction we consider necessary to develop the anti-discrimination law set of definitions, and partly we shall present our “separate opinion” concerning the legal status of the Equal Treatment Authority, as well as other observations we made.

2. In what instances does the Equal Treatment Act prohibit discrimination? (The personal and material scope of the Act)

An important question is that of who can refer to the Act if they have suffered discrimination. Does it only apply to natural persons, or only Hungarian citizens? The Equal Treatment Act offers protection against all forms of discrimination in a very wide sphere: Under section 1 of the Equal Treatment Act, the principle of equal treatment must be respected in regards to all natural persons, groups of such persons, as well as legal persons and organisations not possessing legal personality residing in the territory of the Hungarian Republic. Thus the scope of the Act also extends to persons not possessing Hungarian citizenship who are residing in the territory of the Hungarian Republic with any legal title or without. However, in line with the Directive the scope of the law does not extend to discrimination based on citizenship.

A key element in terms of implementing the prohibition on discrimination is that who can be required to respect it, and which legal relations the principle of equal treatment does or does not refer to.

The prohibition on discrimination naturally applies to state bodies and bodies connected to the public sphere – after all how could the state extend something from private citizens, that it itself does not adhere to?

According to the Equal Treatment Act, bodies performing public tasks taken in a wide sense must adhere to the principle of equal treatment in all of their legal relations, and the creation of such, and in the course of all their procedures and measures taken. The Hungarian state, local and minority self-governments, and the bodies of these, organisations exercising authority powers, the armed forces and law and order bodies, public foundations, public boards, organisations carrying out public services, public and higher education institutions, persons and institutes offering social and child protection care and child welfare services, museum institutions, libraries and public culture institutes, voluntary mutual insurance funds and private pension funds, health care service providers, political parties and budgetary bodies not listed above belong to this sphere.[33]

One of the most delicate points of the anti-discrimination regulations is determining to what extend the prohibition extends to the legal relations of private persons among themselves. The legislator in a taxative form determined the instances when the principle of equal treatment is valid in legal relations between private persons. According to this the following persons shall observe the principle of equal treatment in respect of the relevant relationship:

a) those who make a proposal to persons not previously selected to enter into contract or invite such persons for tender,

b) those who provide services or sell goods at their premises open to customers,

c) self-employed persons, legal entities and organisations without a legal entity receiving state aid, in respect of their relationships established in the course of their utilisation of such a state aid, from the time when the state aid is utilised until the competent authorities can audit the utilisation of the state aid in accordance with the applicable regulations; and

d) employers in respect of employment relationships and persons entitled to give instructions in respect of other relationships aimed at employment and

relationships directly related thereto. [34]

The scope of the law, however, does not extend to the legal relations between family members and relations, to legal relations directly connected with the religious activities of church, social organisations, relationships between the members of legal entities and organisations without a legal entity and relationships related to membership, except for the establishment and cancellation of membership relationship, and the relationships of parties.[35] For these legal relations therefore adherence to the principle of equal treatment is not mandatory.

Based on the above it can be seen that the question of material scope appears interwoven with the personal scope for the Equal Treatment Act, since the law extends to all legal relations and measures of actors in the public sphere, whilst actors in the private sphere are only obliged to adhere to the principle of equal treatment in the relation for which they come under the scope of the Act. The Equal Treatment Act contains special provisions for five highlighted areas (employment, social security and healthcare, housing, education and training, trade in goods and utilising services); however the highlighting of these areas does not represent the determination of material scope.

3. The legal definition and possibilities of establishing discrimination

3.1. The direct form of discrimination

We can speak of direct discrimination when the unequal treatment deemed unlawful is “not masked”, but reveals itself in open and deliberate behaviour, in an individual or normative act, as a result of which without reasonable grounds the individual or group due to some characteristic, condition or opinion is placed in a more disadvantaged situation than, another individual or group in a similar situation.[36] The law does not require that the property serving as a basis for discriminative behaviour be real: for establishing a violation it is sufficient if the offender supposes that the aggrieved party possess the property that provoked the unequal treatment.

As an example of direct discrimination we shall cite the so-called Góman-case from more than ten years ago, i.e. before the Equal Treatment Act was framed. The man concerned entered a pub were the waitress refused to serve him. The concerned tuned to the owner who told him: “Gypsies can’t eat drink or amuse themselves in my pub.” In the case that began as a criminal procedure the owner was finally found guilty of the summary offence of defamation by the court of the second instance.

Given the significant transformation of the legal environment, we can claim with certainty that in a similar case to day the pub owner would “not get off so lightly”, since based on the Equal Treatment Act a penalty exceeding the general penalty maximum for summary offences (currently HUF 150 thousand) can also be given, not to mention the rules of law concerning temporary closure of the given business.

The more severe form of discrimination is when unequal treatment is institutionalised, i.e. when persons of groups of persons possessing a fixed characteristic – usually for lengthy periods of time – become the victim of discrimination on the part of a person or organisation in a position of power. The property forming the basis of such violations in the cases we investigated is usually Roma origin, whilst the “offenders" are usually the public administration authority (for example notary), public institute (hospital, school, social institute) or political actors (representative board, mayor). The following is an example from previous years, which also highlights the difficulties of proof of the violation of the law discussed.

The complainants objected that in one of the birth departments of a hospital outside the capital Roma and non-Roma new mothers were being treated differently, and placed in separate wards on the basis of their origin.

In the course of our investigation on data protection grounds [37] we could only speak with the hospital professionals. We could only learn indirectly of the opinion of the “other side”, i.e. the experiences of the young mothers who had perhaps suffered grievances from the court judgements put at our disposal.

(We published our investigation report in its full extant in the appendix to our 2003 report, so here it is sufficient to refer to the main conclusions of the report.) During our on-site meetings, both the doctors and the midwives categorically denied the fact of discrimination. However, they generally mentioned – in line with the justification of the court rulings – that it can occur that only Roma young mothers enter one particular ward.

Based on the information at our disposal, discriminative intention could not be proven beyond doubt, not the fact of direct discrimination. It could be established that at certain points Roma and non-Roma young mothers were in fact placed in separate wards, however it could not be proven that the separation took place without reasonable grounds, since the doctors and midwives supported their practice of placing patient primarily on medical grounds. (The example above precedes our presentation of the special form of discrimination, the phenomenon of segregation, which we shall discuss in more detail in chapter 3.4.)

3.2. Cases of indirect or concealed discrimination

It can be regarded as a form of development (but also of adaptation) on the part of society that in most cases it does not dare to be openly discriminate and discrimination remains concealed, taking on a form that at first sight appears neutral and lawful. We speak of indirect discrimination when an apparently neutral provision, condition or practice that sets the same requirement for all persons concerned disadvantages a set of persons possessing a given property in comparison to other groups of persons in a similar position.

Here therefore we are speaking about apparently neutral provisions, those addressed by the rule are only formally in the same situation as others, whereas due to some property or life circumstance beyond the fault of the given community or and independently of its volition they are incapable of satisfying the given requirement, therefore suffering a concrete disadvantage or missing out on an advantage that the majority who do not possess the given property or condition can enjoy.

If a local government qualifies taking possession of household rubbish that can be regarded as unclaimed as a summary offence, and makes great endeavours en masse to implement this provision, and it is further clear that in the given settlement a portion of the Roma population lives from taking possession of unclaimed household rubbish, that it can justifiably be suspected that the prohibitive norm is really addressed to the settlement's Roma population.

From our 2003 report we would like to cite a further example of indirect discrimination, from the area of summary offences. The aim of the institution of public interest work that entered the LXIX Act of 1999 on Summary Offences six years ago, was that those offenders who were unable to pay the fine levied should not suffer a significantly more severe form of punishment such as being locked up in a police jail or detention institute merely because of their financial situation. Completing public interest work, however only represents a real alternative to being locked up if employers offer the possibility of fulfilling this sanction.

One complainant objected that since the 2002 local government elections there has been no possibility in the settlement for transferring fines imposed but not paid for summary offences to public interest work. In his opinion this procedural practice disadvantaged the Roma primarily, because they were the ones who because of their financial situation were unable to pay the fine.[38]

To date there is a debate between experts and law-enforcers, about what the original legislative intention was regarding this situation. Did the legislator allow public work as a general right to those who are unable to pay fines for summary offences? The justification of the Summary Offences Act represents precisely the opposing standpoint, yet the justification of the rule of law currently has no legal binding force. It merely reflects the opinion of the legislator, although it can orientate the law-enforcer and those addressed by the law in the interpretation of statutory provisions and resolution of collision situations.[39]

3.3. Prohibition on harassment

This type of injury, which we describe as harassment in the everyday sense of the word, is experienced by people today in numerous cases – in the street, in traffic, at the workplace, in public places – in the course of hostile manifestations arising from the most various motives that violate human dignity, their set of values and customs, offend good taste and restrict their freedom of volition.[40]

Sexual harassment at the workplace has a separate literature and statutory legal background.[41] The Hungarian criminal and summary offences law sanctions actions that have a “harassing nature" in numerous statements of facts against public order, whilst harassment independently was not penalised until the Equal Treatment Act came into force. Behaviour of a harassing nature is, for example, rowdy conduct that can disturb public order (rowdiness, torture of animals, aggression with dog, aggressive begging etc.) These forms of behaviour do not require a concrete “injured party”, and secondly they are restricted to one-off violations, strongly delimited in time and space, without taking into account the longer-lasting negative social effects for the injured parties.[42]

The Equal Treatment Act first named harassment in Hungarian law as one of the qualified forms of discrimination, according to the Act, harassment is a conduct violating human dignity related to the relevant person’s characteristic defined in the Act [43] with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around a particular person.[44]

Discriminative “violation of dignity” as a special aim or result is a fundamental novelty compared to the earlier actions with the character of harassment. In order to ease the task of the law-enforcer it would perhaps have been more fortunate if the law had used the expression of “treatment”, indicating that it is hardly possible with a single action to create an intimidating, hostile, humiliating, degrading or offensive environment, and that for this severe result – or threat of such – usually a lasting connection between the offender and the injured party is required, or the behaviour of harassment has to be repeated regularly.

In order for harassment to take place – as opposed to the criminal and summary offences forms of rowdiness – there is no need for public nature in terms of observability. In the members of the community concerned there must develop as a consequence of the action the negative emotional excess, required by the law. The legal object is not public order, i.e. legally acceptable before the public is not the key concept and scale, but an unrestricted constitutional fundamental right, human dignity. It does not require particular prophetic skill to see the scale of the law-enforcer’s task in connection with proof of the existence of the “unseen” special intention in connection with actions of a harassing nature.

In 2005 we received a complaint – which can be included in the sphere of harassment – according to which certain teachers were “picking” on certain children, which the parent connected to their origin.

In such cases it is not only difficult to prove whether it the case that the behaviour of the teachers has violated the equality of the children, but also whether the cause of this is the minority origin of the child. In one case we had at our disposal teachers’ notes going back 3 years recording the various conflicts. These in many cases raised the question of bias, and the application of incorrect pedagogical methods. In the course of the investigation, however, it was revealed that the teacher concerned – partly because of the reasons listed above – was no longer a member of the teaching board. Over and above the concrete case we offer our cooperation in all similar complaint cases in organising ant-discrimination trainings.

3.4. A special area of discrimination: segregation

The prohibition on “unlawful separation”, which is known in both everyday language and in legal terminology as “segregation” appears in the Equal Treatment Act as follows.

Under section 10 (2) of the Act, “Unlawful segregation is a form of conduct that separates individuals or groups of individuals from others …without a reasonable explanation resulting from objective consideration.”

Segregation therefore means unlawful separation, which can be summarised as follows: separate rules are applied to somebody or a group of persons, and they are treated differently from the others causing disadvantage in a social sense. There are, however, legal instances of separation that can be reasonably and logically explained, such as the question of minority education. (You can read in more detail about minority education and the relationship with segregation in the appendix to our 2004 annual report, or in the amicus curiae letter found in appendix no. 2 of the current report.)

Segregation – whether based on a lawful or unlawful motive – also entails psychological injuries, as a consequence of which the injured party, based on some property or action of theirs, is forced to experience outcasting and exclusion from the majority. The segregated person is surrounded by a hostile environment that they are either unable to resolve due to the lack of sufficient abilities, knowledge or other conditions, or - if a significant property belonging to the personality and identity of the person (racial, gender ethnic affiliation, religious ideological conviction, sexual orientation etc.) lies behind the segregation – then they can change the existing situation, or only by giving up their personality.[45]

The most severe forms of segregation are when the segregation becomes institutionalised, and persons or groups of people are segregated – usually for a lengthy period – by a person or organisation that is in a position of power over them. The property on which exclusion is based is in the cases we examine usually Roma origin, whilst those committing the offence are usually public administration authorities (for example notary), public institute (hospital, school, social institution) or political factors (representative board, mayor).

Despite the fact that significant reforms have begun in the educational system, the unlawful separation and segregation of children affiliated to the Roma minority is still a topical question. In 2005 we organised a debate forum to review the effectiveness of the efforts made to implement integration, which we shall discuss in point 3.4 of chapter VIII. We expressed our standpoint in the theoretical questions of the phenomenon of segregation in the amicus curiae that can be found in the appendix. In the current chapter we shall discuss complaints received during the report period concerning unlawful segregation.

One complainant raised the grievance that her children had been referred to a special needs school by the expert rehabilitation board. The parent interpreted this as exclusion from the school and protested against it at every forum (board, school, local government).

In the course of our investigation we requested the professional opinion on the child given by the expert rehabilitation board.

On the basis of these, we established that the opinions did not contain guidance that if the parent does not agree with the opinion, they can initiate a procedure with the notary, as set down in section 14 (1) of the 14/1994. (VI. 24.) MKM decree on obligation of instruction and the pedagogical special services.

The parent gave voice to her protest in several places, but in the lack of information she could not exercise her right to legal remedy.

In addition the opinions did not take into account the provision according to which, “…if the pupil has successfully completed the second elementary school year, then the child can only be transferred to a school designated for those with mental disabilities if the fact of the mental disability could not be clearly established by earlier investigations until this point, or if the mental disability occurred following this.”[46]

At the time of the 2004 investigation the child was attending the 3^rd class, and had successfully completed the second class of elementary school. Referring the pupils to a school with a special syllabus would only have been possible under the grounds listed above. .

In the case of both children the earlier opinions (February 15, 2001 and November 12, 2001) said that their intellect was sound, although development sessions were recommended. The examinations in February 15, 2004 and November 15, 2004 establish “mild mental retardation”, and recommend schools with a special syllabus.

The last opinions prepared at the request of the school, however, do not record any event (nor does the document of the school requesting an examination) that mental disability would have occurred as a consequence of some circumstance (e.g. accident). The first examination clearly established mental soundness, so there was no uncertainty concerning the presence or lack of mental disability.

On the basis of the above we considered the transfer of the children to be unlawful and established that due to the listed procedural law and professional errors, it no longer possible to implement the contents of the opinion of the expert board.

Given the above we proposed to the notary of the settlement that the necessary measures be taken for the children to continue their studies at the elementary school.

We requested that the local government that operates the expert board initiate a review of the professional work of the board by the Eötvös Loránd University Practising Special Needs Teaching and Logopedagogic Specialist Service, Expert and Rehabilitation Board, and Special Needs Teaching-Professional Service-Provider Institution.

The notary agreed with our proposal and from September 1, 2005 the children could continue their studies at the elementary school. The county chief notary accepted our recommendation and concluded that the board had committed a procedural error by not informing the parent of the possibility of legal remedy. The notary also informed us that the then professional head of the of the expert board was no longer working at the institution, therefore the employer was no longer able to take action concerning the experienced procedural law and professional errors. In addition the notary informed us that he had made contact with the National Expert Board, and the institution had undertaken to carry out a review of the children; he had also contacted the parent in order to obtain the necessary parental statement. The notary also promised that the work of the county’s expert board would be increasingly monitored to ensure that procedural rules are adhered to.

At the time of writing the Report the professional revision opinion of the National Expert Board was not yet at our disposal. Without this, however, we could not established without doubt whether or not the professional opinion of the county rehabilitation board had infringed the professional rules, thus causing the separation of the children without “rational grounds according to objective consideration”, i.e. segregation. Due to the phenomenon of segregation by referring children to special needs schools, that we began to investigate in 1999, we shall follow the further development of the case with special attention.

Finally due to the close connection in subject matter it is worth mentioning the following instances in this sphere.

In this year too we received numerous complaints concerning discrimination and segregation of pupils and students, which in the opinion of the complainants was linked to their origin. Some of the complainants objected to felt that the behaviour of certain teachers was discriminative, and interpreted the physical abuse of their children, or neglectful behaviour in the course of school accidents and treatment violating their dignity to be injuries resulting from their minority affiliation.

Proof is extraordinarily difficult in such cases: often it can not even be proven that the injury itself took place, not to mention examination of whether it was discriminative. We listen to all the parties concerned, and in such cases we always hold an on-site discussion. Often our experience is that the lack of an appropriate relationship between the parent and the school lies behind the conflicts. The lack of communication raises suspicions in both parties and can easily give rise to misunderstandings. For this reason we place great stress on the creation of the framework for regular contact by involving the local child welfare service, the family helper, teachers and the Roma minority self-government. In the case of multiply disadvantaged parents living in the edge of society we draw the attention of local government bodies and the school to the need to give special treatment to the question of information exchange.

During the report period several clients complained that their children had been physically abused by teachers at the school, which they regarded as a manifestation of prejudice against their Roma origin.

In these cases we always informed the complainant urgently about the possibility of launching a criminal procedure. This has to be done as matter of urgency because if the prosecuting authority judges that it is a question of an action indictable by a private request for prosecution (qualified form of defamation, light physical assault), i.e. reasonable suspicion of a crime to be prosecuted ex officio (for example abuse of a minor) is lacking, then the complainant only has the possibility of launching a procedure within the prescribed deadline.

In cases complaining of abuse, based on section 24 of the Ombudsman Act we without exception request that the maintainer or head of the institution investigate the case within a disciplinary procedure. It is a problem, however, that on most occasions our request is only met within the framework of an informal talk. We can request, but not oblige the bodies concerned to conduct a disciplinary procedure.

In one case a parent complained that her child frequently suffered accidents at school. She complained that the school did not do everything to avoid such accidents, or to investigate the real events. According to her, the school delayed informing her and the doctor. The complainant interpreted this as discrimination.

In the concrete case the statements of the parent and the school were contradictory. The medical finding we obtained did not provide evidence of such severe wounds that action would have needed to be taken according to the provisions of the 11/1994 MKM decree. At the same time we drew the attention of the school that the fact in itself that the pupil concerned had frequently suffered smaller or larger accidents in itself demands more sensitive pedagogical attention. Whether it is case of the self-threatening behaviour of the child, or the consequence of the behaviour of his peers, there is a need to involve the school psychologist.

The investigation of two earlier cases was continued in 2006, which were based on conflicts that have been ongoing for years. In these cases, after exhausting investigation of the concrete violations and the means of on-site mediation, we informed the parties of the possibility of making use of the Educational Mediation Service. Our cooperation with the Service has been excellent for years, and in the treatment of injury of interests beyond redress of violations and long-lasting conflicts we can always count on their effective cooperation.

4. Guarantees assisting the implementation of the ban on discrimination: the proof of burden, the prohibition on retribution and the assertion of public interest claims

Article 8 of the 43/2000/EK Directive on Implementation of the Principle of Equal Treatment makes possible the so-called exculpatory proof in racial discrimination cases, which in public knowledge (and partly in professional public opinion) has incorrectly become known as the reversal of the burden of proof. In fact it is a case of the division of the tasks proof between the two opposed parties, the logic of which the Equal Treatment Act has adopted, with an extension to all possible areas of discrimination. We shall here take a look at who has to prove what in authority procedures concerning the violation of equal treatment.

The party that has suffered the injury is obliged to prove that they possess or at the time of the violation according to the assumption of the offender possessed the characteristic defined by law and serving as the basis for discrimination, and that they have suffered some disadvantage. (They are not obliged, however, to prove that there is a causal connection between the real or imagined property and the disadvantage they have suffered.) Should the proof of the party who has suffered the injury appear successful, it is the turn of the “offender” to prove that they have upheld the principle of equal treatment (i.e. that the disadvantage did not take place, that there is no causal connection between the disadvantage and their own behaviour, or that there was a reasonable grounds for the behaviour according to objective consideration or that they were not bound to uphold the principle.

Thus the “offender” – as opposed to the unrestricted defence resulting from the presumption of innocence, i.e. the right to total disavowal and silence (a legal principle unique to procedures aimed at establishing liability) – bears a burden of proof concerning two circumstances connected with one another: they have to supply proof that there is no causal connection, and also find an exculpatory reason that makes their actions legally excusable.

The experiences of employment trials resting on such a logic warn us that to whatever extent to the burden of proof has been lightened in such public administration procedures, this does not make easier the dilemmas of the given authority and its responsibility of weighing up the matter in discrimination cases: alongside taking into account contrary statements, figures and other items of proof, the authority must reach a decision by taking into consideration all the relevant circumstances, based on logic, reasonableness and lifelikeness, without any bias.

In such cases, particularly where a lifelike claim is set against another lifelike claim – when it is necessary to compare the probable with the probable –, even experienced law-enforcers can commit serious errors of consideration. In order to develop a genuinely lawful and well-grounded decision-making system in the public administration and judicial practice there have to be drawn up on the one hand the standards of discriminative disadvantages, and on the other hand of exculpatory grounds, in the existence of which according to all probability liability can be established, or on the contrary, the defence of the “offender” can be judged effective.

Likewise based on the Directive, the Equal Treatment Act introduced the definition of retaliation alongside harassment and segregation. According to the Act, retaliation is behaviour by which a legal violation is caused or threat of legal violation made against a person who has raised an objection, launched a procedure or is cooperating with a procedure concerning violation of the principle of equal treatment.[47]. The provision wishes to offer a form of protection to those who raise their voices in cases connected to the violation of equal treatment, whether this be directly against the person causing the violation or by attaining redress through setting in motion the legal arsenal, or to punish the violation in some way. This provision also protects those persons who cooperate in uncovering the discrimination either as witnesses or by other means. If, however, the victim of discrimination is at once the subject of retaliation, then the “offender” has to accept responsibility for a double legal violation, and in given cases can count on a severe sanction in both kind and degree. We note that the Equal Treatment Act does not recognise the concept of cumulation (nor of collective penalty), and this legal loophole can cause concerns in judging and establishing the level of the penalty in procedures where several actions have been carried out by the same offender.

We know well to what extent, especially in the world of work, the social situation, intellectual and financial power, informedness, and ability to exercise their rights of the “offenders and the “injured parties” can differ. The law wishes to reduce this kind of inequality, and to reduce vulnerability (both existential and in other senses), by threatening those offenders who “take revenge” with a legal disadvantage. Experience will show whether given the parties are usually in a lasting legal relation with one another, the sufferers will have enough bravery to take on the social risk connected to such procedures aimed at calling to account the offender.

The Equal Treatment Act in an organic sense widens and makes more general the possibility of the so-called assertion of public interest claims. According to this the following can launch a personality rights trial, or employment trial before the court due to violation of the principle of equal treatment.

· the prosecutor,

· the authority,

· the social and interests representation organisation if the violation of the principle of equal treatment was based on a characteristic that is an essential feature of the individual, and the violation of law affects a larger group of persons that cannot be determined accurately.[48]

The damage (injury) cannot be expressed in terms of money that through unlawful discrimination affects the whole of the minority either directly or indirectly and can have a long-term effect on how they are regarded by society and the possibilities open to them. Activities of groups in society that are openly anti-minorities, can cause serious fears and identity disorders in certain members of the community, and in a negative sense can cause uncertainty in the indifferent "prejudice-free" groups of society too.

The essence of the public interest law suit (actio popularis) is that out of public interest – alongside or instead of the person primarily entitled – a person or body entitled by the rule of law may enforce a right without being the entitled or obligor in a substantive legal sense. The Hungarian legal system recognises this concept, but only in a limited sphere due to the familiar restriction connected to the right of self-determination. The interested parties in the legal dispute have a constitutional right to bring the case before the court. This right – similar to other freedom rights – includes the freedom not to exercise this right.

Unfortunately the legislator has failed to interpret the concept of “essential characteristic”. In addition, we have repeatedly raised the question of which the ombudsman institution has been left out of the sphere of those who may assert a public interest claim. In our opinion the ombudsman institution possesses all the attributes that make it suited – through an appropriate amendment of the Ombudsman Act – to being an effective institution for anti-discrimination legal defence with a broader set of licences for a wider sphere of tasks. Naturally the possibility of submitting public interest claims belongs to this sphere.

5. The need for amendment of the Equal Treatment Act – our participation in codification

The Ministry of Youth, Family, Social Affairs and Equal Opportunities as well as the Ministry of Justice in 2005 proposed the amendment of certain laws concerning equal opportunities, including amendment of the Equal Treatment Act. During the draft amendment work we expressed our opinion on several occasions, based on both Hungarian and international practical experiences. In order to improve the effectiveness of our work, it is of enormous importance for our Office that there be anti-discrimination legislation of a high standard which takes into account international and EU norms and regulations and can also withstand practical implementation. In the past too we placed great stress on developing and supplementing the legislative background against discrimination, and in 2000 our office prepared an independent draft text on the subject of action against racial discrimination. The cornerstones of our standpoint in the course of the 2005 drafting work were the following:

5.1. Fundamental definitions of the Equal Treatment Act

The standard of a rule and law and the effectiveness of its implementation are fundamentally determined by the given set of definitions. This is particularly so here in the case of such a complicated area which attempts to place complex social, socio-psychological phenomena under legal regulations. Further factors also contribute to the particularly sensitive nature of the ban on discrimination. Partly the fact that in this area two fundamental legal principles, equality and the right to freedom come into conflict, and restriction of either of the two is only possible for extremely powerful reasons and must be entrenched with appropriate safeguards. Regulating this issue is made more complicated by the fact that the definitions have to comply with three scales. On the one hand the definitions must satisfy the contents of the European Union rules of law, but they must also conform to the Hungarian constitutional order, and nor can the earlier resolutions of the Constitutional Court on this subject be left out of consideration. In addition naturally they must satisfy the international anti-discrimination norms, since it is the constitutional obligation of the legislator to ensure that international and domestic law are in line. In the light of these criteria we made recommendations for the amendment of the set of definitions. The most significant element of our proposal concerns the following:

According to the operative text of the Equal Treatment in section 8(2) the principle of equal treatment is not infringed by provisions that have, “a reasonable explanation arising from objective consideration directly connected with the given legal relation.” The amendment draft wished to change this as follows:

“(2) The principle of equal treatment is not violated if

· conduct based on the significant characteristics of certain persons as a property (…), which proportionately serves the achievement of a lawful aim through the disadvantage caused,

· a provision based on characteristics listed in section 8 not coming under the scope of a), which according to objective consideration has a reasonable explanation directly connected to the given legal relation.”

A requirement of “a reasonable explanation arising from objective consideration” features in both the text in force and the post-amendment text. This exculpatory reason, however, raises concerns both in light of the EU norms and the terminology of Hungarian anti-discrimination law.

The 2000/43/EK Directive on implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (hereinafter: Directive) prescribes the appropriate and necessary nature of the means, whilst the Hungarian regulations merely require the explanation to be reasonable.

In order to decide whether the two principles can be matched in content, we examined what the term above in fact means, according to the practice of the Constitutional Court, i.e. the principle of reasonableness.

5.1.1 The Constitutional Court’s test of reasonableness and the so-called necessity -proportionality test

The reasonableness test is applied by the Constitutional Court concerning rights that do not qualify as fundamental rights. Discrimination is arbitrary if it has no reasonable grounds, and if the differentiation takes place based on criteria that are not reconcilable with human dignity, i.e. if it violates the requirement of being treated as a person of equal dignity, i.e. ultimately infringes the right to human dignity.[49]

The principle of reasonableness becomes more comprehensible if we examine what the necessity-proportionality means in the case of discrimination concerning fundamental rights. This test is essentially the scale of the constitutional restriction of fundamental rights.[50]

In order to restrict a fundamental right, or to apply differentiation concerning fundamental rights, “reasonableness” is not sufficient. It must also be the case that there are no other means available for achieving the given aim, i.e. the differentiation or restriction must be “unavoidable”. “Necessity” therefore means in the practice of the Constitutional Court the final means if there is an explanation compelling use of differentiation, when the aim of the regulation cannot be achieved by any other means. The aim and ground for the restriction or differentiation can be a fundamental right, the defence of freedom or the realisation of another constitutional aim.

“Proportionality” covers a double requirement. Firstly the requirement that the mildest restriction be used to achieve the given aim, and secondly that the differentiation or restriction must be in proportion to the importance of the desired aim.

5.1.2. Critique of the Hungarian regulations in light of the practice of the Constitutional Court and the 2000/43/EK Directive

The relational explanation required by the Equal Treatment Act in the light of the Constitutional Court scale does not mean unavoidable restriction, unconditionally necessary to achieve the desired aim, of the mildest means and in proportion to the injury caused, it only means that the discrimination must not be arbitrary. The Directive, however, prescribes the “appropriate and necessary” nature of the means applied. According to the British Commission for Racial Equality the principle of necessity includes the principle of the unavoidability of the given means.[51] The European Court interprets the principle of appropriateness and necessity in connection with proportionality: the principle of proportionality requires that the approved measures be appropriate and necessary to achieve a legitimate aim. When several possible appropriate means are available then the one must be selected which causes the least injury and the injury caused must be in proportion to the aim that is to be achieved.[52] Thus in this respect the Hungarian legislation remains below the EU scale.

The difference between the two tests is well illustrated by a practical example (that took place in England): whilst on the basis of the reasonableness test it seems acceptable that men with beard should not work in chocolate factories, based on the necessity-proportionality scale it is examined whether there is another solution to avoiding the problems of hygiene, for example using some kind of protective equipment. If there is another solution and discrimination is not the only possible path, and then based on the necessity scale the employment of men with beards cannot be rejected.

The Hungarian definition also falls beneath the scale drawn up by the Constitutional Court, according to which in the case of discrimination concerning fundamental rights the necessity-proportionality scale is to be used. Numerous legal relations come under the material scope of the Equal Treatment Act, which can concern fundamental right. The legal relation in itself can concern fundamental rights – for example education, or in connection with this children’s and parents’ rights, and the related state obligation. On the other hand the characteristic serving as a basis for discrimination can also be connected to fundamental rights – typically discrimination according to religion or ideological conviction. Thus we can say that the regulations reduce the currently existing level of protection concerning fundamental rights, and do not respect the general test for restriction of fundamental rights. As a consequence article 6 (2) of the Directive is infringed, which states that, “The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive”.

The planned amendment does not resolve this problem.

The draft submitted applies a double scale: in relation to discrimination based on “an essential feature of the personality of certain persons as a characteristic” it uses the principle of proportionality, which is a stricter principle than the test of reasonableness. “Essential feature of the personality of certain persons” also appears in section 20 of the Equal Treatment Act on assertion of public interest claims. Pursuant to the justification attached to the Act, the practice to date of the Constitutional Court qualified religious and other convictions, as well as national and ethnic minority affiliation as features belonging to the essence of personality however this is not an obstacle to the law-enforcer regarding other characteristics as such.[53] In terms of legal security, however, it raises very serious concerns that the legislator allows the definition to be given its content by the current law-enforcement on each occasion.

5.1.3. Our codification proposal

Based on the above we recommended that:

· concerning discrimination not affecting fundamental rights the conditions of lawfulness should be the lawful aim, use of the mildest possible means to achieve that aim, and proportionality. This solution would comply with the European Court scale, and thus also with the content of the Directive;

· discrimination affecting fundamental rights should only be allowed in order for another fundamental right to be realised or for a constitutional value to be protected or for another aim in line with the Constitution. The conditions for lawfulness of the discrimination should be the unavoidability of the discrimination concerned, alongside causing the smallest possible disadvantage to achieve the given aim and the principle of proportionality. This solution is in line with the Constitutional Court’s test concerning the restriction of fundamental rights and discrimination affecting fundamental rights, and also with article 6 (2) of the Directive that forbids the reduction of the existing level of protection.[54]

5.2. Institutional guaranties of an effective stance against discrimination – the independence of the Equal Treatment Authority

Ensuring the independence of the Authority is of key importance in terms of implementing the ban on discrimination. Under article 13 of the Directive the member states are obliged to ensure that the body created to take action against discrimination is able to conduct independent investigations and produce independent reports. The European Commission against Racism and intolerance (ECRI) in general recommendation no. 2., basic principle no. 5 states that there is an expectation for member states that the bodies established on the basis of the Recommendation, be able to perform their tasks free from state intervention and in the possession of all safeguards required to ensure their independence.

In connection with the draft text on amendment of the Equal Treatment Act we indicated to the codifiers that the legal status of the president of the Equal Treatment Authority does not comply with the expectations above, since according to the effective regulations the Government may relieve the president of their pose at any time without supplying a justification.

In March 2005, prior to the comprehensive amendment work concerns has already arisen concerning the self-determination and financial independence of the Authority.

5.2.1. Financial independence of the Authority

Section 13 (4) of the Equal Treatment Act originally states that the Equal Treatment Authority “whose budget forms an independent title in the budgetary chapter of the Prime Minister’s Office is a budgetary organ vested with authorities in the chapter.”

A draft on amendment to acts on taxes and contributions envisioned the annulment of this provision. The codifiers justified the amendment to the Equal Treatment Act, by the fact that in the 2005 Budgetary Act the budgetary allowance of the Equal Treatment Authority appears in the chapter of the Ministry for Youth, Family, Social Affairs and Equal Opportunities, therefore the statutory regulations have to be brought in line.

In order to defend the independence of the authority we turned to the Ministry for Youth, Family, Social Affairs and Equal Opportunities, the Finance Ministry that submitted the draft, the Committee for Human Rights and Minorities and the Constitution and Justice Committee, expressing our concerns about the planned amendment.

In our opinion by repealing the cited provisions of the Equal Treatment Act there would be no statutory guarantee of the financial independence of the Equal Treatment Authority. The planned amendment does not simply affect the budgetary management, but also has a direct affect on the legal status of the organisation.

As a consequence of the amendment the financial allowance of the Equal Treatment Authority – which would appear merely as a title within the ministerial chapter in the budgetary law – could be blocked, reduced or redistributed by the Government under sections 38/A (1) and 39 of the LXIX Act of 1999 on Summary Offences. Since one of the tasks of the Equal treatment Authority is investigation of the activities of the executive power, it is particularly important that the government not be able to influence the operation of the organisation through its budget.

We cited the conclusions expresses by the Constitutional Court in several resolutions [55], according to which “it is not just of symbolic significance whether a body appears as an independent chapter or as a title within a chapter”, and that it is of “constitutional significance” which statutory safeguards are realised by amending the allowance.[56]

Based on the above we stressed that: in order to realise the principle of constitutionality the Parliament had to frame a rule offering protection against the government changing the budgetary allowance of the Equal Treatment Authority.

Our arguments, however, did not have the appropriate effect: under the amendment to the Equal Treatment Act effective from May 10, 2005 “the budget of the Authority forms an independent title within the budgetary chapter of the Minister overseeing supervision of the budget of the authority”.[57] This means that the Authority no longer qualifies as a budgetary body vested with authorities on the chapter, and its financial independence is curtailed. This solution is very worrying in the light of the contents of the Directive and the ECRI recommendation.

5.3. Our further observations concerning amendment to the Equal Treatment Act

We expressed our concerns regarding the planned elimination of the provisions featuring in chapter IV of the Equal Treatment Act concerning the Equal Opportunities Programme of the Republic. According to the standpoint of the codifiers, the creation of the Programme had become pointless, because on a similar topic the national action plan was to be drawn up, based on the Joint Memorandum on Social Acceptance, and the topic is also touched by the National Employment Action Plan. In order to avoid the crossover, they wished to repeal the provisions relating to the Programme.

It is a fact that both the Programme and the national action plan contain governmental measures aimed at ensuring equal opportunities. The significant difference, however, is that the national action plan only sets out aims and indicates the directions to be taken in fighting social exclusion. By contrast the Programme should also “determine the necessary legislative tasks to implement the appointed aims”.

At the time of approving the Equal Treatment Act, the government had already decided that it agreed with signing the Memorandum on Social Acceptance. It was, therefore, known that the national action plan had to be prepared. Despite this the cited crossover only struck the codifying ministries after almost a year and a half when the deadline for drawing up the Programme was drawing conceivably near.

We stressed that nor does it send a “good message” that whilst in cases fixed by the Equal Treatment Act employers have to approve an equal opportunities plan, whilst by amending the Equal Treatment Act the government would be exempted from its obligation to draw up the Programme.

We also indicated that according to the operative regulations, fines imposed by the Equal Treatment Authority belong to the budgetary allowance of the Programme. This provision would have been annulled, without mentioning in future what would happen to this sum of money, and whether it would continue to be assigned to the aim of fighting legal violations. We think this question should also be settled at the time of amending the Act.

We continued to maintain our standpoint, as consistently represented in the course of drafting the law, that the repressive nature of the system of sanctions of the Equal Treatment Act are not suited to act effectively against discriminative forms of behaviour, and do not even ensure appropriately the restoration of the rights of the person who has suffered the grievance. A mediating procedure aimed at reaching an agreement and compensation for the injured party are both more attractive for the offender and the injured party, than court-focused public administration sanctions, or a long and expensive civil or employment trial.

The “criminalisation” of discrimination – criminal or summary offence procedures that can be launched on the grounds of discrimination

The operative criminal law does not recognise discriminative tényállást in an exact form. The motive of racism only gains significance in the case of a the most severely-punishable actions, as well as actions committed involving violence, threats or verbally, based on which the Criminal Code penalised in total four statements of facts (genocide, apartheid, violence against members of national, ethnic, racial or religious groups, incitement against community). We know, however, that in practice these actions (with the exception of incitement) do not appear in the crime statistics. However, there can be no illusions that the motive of “discrimination” lies behind numerous other crimes of violence against persons or of a rowdy nature, primarily hatred based on national, racial or ethnic origin, when uncontrolled anger spills over into action. Research into the motive (and purpose) is the task of the authorities involved in the criminal case.

It is difficult to accept that racist motives receive play such an inferior role in such a vast number of violent crimes. We have far greater grounds for suspecting – even in spite of the undoubted difficulties of proof – the unique “resistance” of the authorities and courts in this delicate question from all aspects. In our opinion this “reluctance” can not be changed primarily by legal means: if a form of paradigmatic change in terms of minority defence would occur in the forums of public thinking and public discourse, including the example-setting behaviour of actors participating in forming public opinion (the press, the public institute sphere, the national professional, political, economic and cultural elite, the forums and personalities of civil legal defence), then this type of attitude change can serve as an example and as an intellectual-ethical handhold for criminal-law-enforcement (and in given cases as defence) for criminal law enforcement agents too.

The summary offences law in total names discrimination in two statements of facts, characteristically not on a statutory level, but in a government decree. The legislator judges that the world of work and the area of public education could be protected through the means of “petty criminal law” from discriminative manifestations that are non-violent and do not involve a violation that can otherwise be qualified in terms of criminal law. These evidently fragmentary regulations are all the more apparent because summary offence actions span almost the entirety of life relations, since in almost every branch regulated by public administration norms, totally regardless of whether there are other public administration sanctions in the given area and how effectively they function, we find the appropriate summary offences statement of facts, from defence of public order through land protection to the violation of industrial law defence rights.

Since 1997 employees have been “protected” by the statement of facts titled “discrimination against employees”, which threatens with a maximum fine of HUF 100 thousand those employers who

· deny employment in view of gender, age, nationality, race, origin, religion, political convictions, affiliation to an employee rights representation organisation or connected activity, as well as any circumstance not related to the work relation,

· discriminate between employees due to the contents of point a)

Did the legislator really consider seriously that in the labour force market today the summary offences liability is suited to have significant influence on contractual legal relationship that embody inequality in terms of power and information, whereby a procedure has to be launched and in a given case sanctions have to be given to a person who has numerous opportunities to take revenge for the stance taken by the employee? Without concrete figures we can claim that the large proportion of victims of discrimination does not undertake the risks of an employment trial offering the distant hope of compensation, let alone the enforcement of summary offences liability that promise nothing to the injured party, thinks only in terms of repression, and does not even involve serious sanctions.

Another concern, however, is “company” responsibility, which is not recognised by the summary offences law, since only natural persons can be offenders. By reporting the offence, therefore the employee may not only lose their chance of reparation to some extent for the material and ethical violations they have suffered, but also has to find a flesh and blood offender in the potentially hierarchic and complicated organisation. Independently of the above there is naturally a possibility for employment inspectorships to spot the discriminative practice ex officio and to react with the most various forms of public administration sanctions, including the means of summary offences law. It could be the subject of a meeting whether the employment supervision bodies have today the intellectual and financial force and political courage to uncover and sanction work place discrimination that can be experienced en masse.

Looking at the matter from a wider perspective it can be asserted that using sanctions is not the primary means for enforcing the contractual conduct of parties in a lasting legal relationship, where one party has a clear power advantage, and the other must endure the most varied forms of “subjection” due to economic and social constraints, but a change in interests: it is evident that executive power has to use the means of positive discrimination – for example by lowering the costs of employment – to help groups of employees in the labour market who are the most vulnerable and able to assert their rights, so that it is worth while for employers to employ them.

The other statement of facts wishes to protect pupils from the “autocratic” discriminative manifestations of teachers. According to the so-called framework-statement of facts [58] with the title of “Contravention of rules concerning the pursuit of teaching/care activities” it is possible to impose a fine of up to HUF 100 thousand on teachers who discriminate against pupils by deliberately infringing the provisions relating to public education. Conducting procedures due to such an offence falls with the competence of the National Public Education Assessment and Examination Centre (OKÉV).[59]

The sociological and socio-psychological basic situation is similar to the world of work: in a lasting legal relationship there is on the one hand a mass of persons in a vulnerable position and on the other the army of those in a position of power: the representatives of the maintainer, the leadership of the school, and the teacher themselves, who of course also feels in a vulnerable position within the school. Here too we can say that there are numerous more effective means of resolving pupil-teacher conflicts than the threat of authority sanctions.

For parents, before deciding to report an offence – as we have already stressed in the chapter on segregation – it is above all worthwhile communicating with their own child, with the school, with the staff of the family help services, with the school psychologist, the maintainer, and all those persons who have played a significant role in teaching/care. In numerous cases it becomes clear whether the teaching behaviour judged is the imagination of the child or over-protective parents, possibly a teaching error without discriminative intention, or in fact deliberate conduct by a prejudice-governed teacher against a pupil or group of pupils who possess a determined characteristic. If resolving the conflict becomes impossible within the school and their remains “reasonable suspicion”,[60] then it is possible to risk a summary offence claim (attention must be paid to lapse of the claim, which is six months dated from the time of the offence!), in the awareness, however, that the negative effects of external, authority interventions into the life of the school will primarily afflict the children.

In conclusion we can say that the social prestige, procedural rules and arsenal of sanctions are little suited to uncovering and effectively sanctioning discriminative violations that involve significant burdens of proof and presume the particular sensitivity of law-enforcers, particularly in areas where it is a question of a lasting legal relationship between persons in an inferior-superior relationship. In addition, in numerous cases organisational responsibility predominates, as well as the existential concerns of the injured and their vulnerability in other respects.

6. Features of personal rights defence trials in the light of discrimination

After each case of unmistakeable or implicitly racist and/or anti-minority provocation that received reasonably wide publicity we received several complaints, similar in content, by telephone and email.

We shall highlight several of those by way of example:

One complainant asked us to take action in order that the electronic and printed media observe “self-moderation” when giving news of openly racist and anti-minority actions, and to have regard to national and ethnic minority right.

The Ukrainian national self-government requested our help in connection with the “Freedom of Speech” programme broadcast by Magyar Televízió Rt. on July 17, 2005, because a question raised by the presenter in connection with the London terror attacks including an insinuation insulting to the Ukrainian minority lent itself to offending the national community.

We also received a complaint in which we were asked for our interpretation of the last two lines of a verse (supposedly inside a political pamphlet printed in large numbers), and to give our opinion on whether or not it was offensive to the Roma.

The operator of an internet form asked us for guidance on:

Where is the borderline between free expression of opinion and legally indictable writings offensive to the minority? When does the moderator have to intervene

Does the operator of the forum bear liability for legally indictable comments?

Another complainant raised the point that on the online versions of a popular women’s magazine expressly racist comments could be read (originating from persons hiding behind nicknames).

Many were angered by the hatred-inciting effect of the Oláh Action-titled internet game.

Several complainants informed us about materials spread by email that had clearly been written by somebody whose aim was to provoke. Some examples are the writings sent with the title "A Roma intellectual", in which a person allegedly a graduate of Roma origin threatens that the time will come when the Roma will be in the majority…

We have no legal possibilities for taking effective action in such cases.[61] Naturally alongside setting out that we condemn all expressions that violate the dignity of the national and ethnic minorities, and that “play” on the self-defence reaction of the minority population we also inform our clients about the means of personality defence offered by the operative law. [62]

Personality defence depends on whether the offence affects identifiable persons or unnameable persons and the whole community [63]. In the first instance both the criminal law and civil law defence set of means are available [64], whilst in the latter instance the Equal Treatment Act can offer defence with the assertion of public interest claims.[65]

In terms of judging the relationship between criminal law and personality defence of other legal branches, it is important to stress that the Constitutional Court does not regard the given state of the legal system as authoritative, but also has regard for the possibilities of development. The deficiencies of the legal set of means, therefore, are not in themselves an argument in favour of declaring certain conduct a crime, nor do the make the criminal law restriction of the constitutional fundamental right to expression of opinion necessary or proportional.[66]

The question, therefore, is whether the non-criminal law personality defence can offer an effective set of means in defence of the dignity of a community that is not a legal entity or if not, can it be developed? Is it capable of meeting the challenges of the Internet and the media?

It is a fact that the largest and most dangerous interface for collective personality rights violations is the media and the Internet. The media by publishing generalising materials concerning minorities in Hungary (sometimes openly, implicitly or systematically), on the pretext of providing information [67]provides wide publicity to the representatives of extreme eszméket, and promotes and supports the extension of prejudices and intolerance against certain groups of persons. The main feature of the Internet is anonymity, which means that anyone can express any opinion or publish any fact without naming themselves or hiding behind a nick-name: so on the Internet without the slightest risk anyone may use abusive language.

In our opinion the most dangerous are the opinions offensive to minorities that are disguised or “packaged” and sometimes tudományos színben tetszelgő. Unfortunately at times even the most widely-read and watched newspapers, television and radio programmes that are regarded as the most moderate and restrained cannot resist the opportunity of creating a splash. Tacit anti-Roma speech, subtle Jew-bashing and racism can all be concealed.

On the pages of an online newspaper there was, for example, under an article on the State Secretary for Roma Affairs, under “related news” information about the beating of a policeman without the word “Gypsy” appearing in the article. Another example is the popular talk shows in which forms of behaviour condemned by Hungarian society (homosexuality, crimes, adultery etc.) are “depicted” by Roma guests.

Whilst recognising the importance of freedom of opinion we think that the dignity of human groups is a value that must be protected, in connection with which, as a protected legal object, numerous questions relating to material and procedural law, and the chances of asserting a claim can be raised.

A basic procedural rule of personality defence is being able to make a personal claim: in the case of publication of expressions that degrade a given community, the courts dismiss the personality rights claim as the claimant is a non-named and non-identifiable member of the group concerned.

Based on judicial practice slander can only be established if the injured person can be concretely identified and personally defined. Whilst the intended person of the slander need not be named in person, they must be indicated and described in such a way that it can be established without doubt that the offender has injured the person in question.

According to section 76 of the Civil Code, violation of the rights connected to the person also represents the violation of the principle of equal treatment, thus according to section 84 (1) the person whose rights have been infringed may assert a civil claim (establishment of violation, obligation to end the conduct, reparations, discontinuation of the violation, compensation, public interest fine).

Based on the Equal Treatment Act, however, there is a possibility for assertion of public interest claims, which is fortunate because the personal sphere affected by discrimination

· in general does not know about the possibility of launching a trial;

· does not have sufficient money to pay a lawyer or illeték;

· often the whole community is wronged (can not defined as an individual person).

Assertion of claims of public interest is only possible as set out below:

“A lawsuit under personal or labour law because of a violation of the principle of equal treatment before the court can be initiated by

a) the prosecutor,

b) the authority,

c) social and rights representation organisation,

if the violation of the principle of equal treatment is based on a property that is a significant feature of the personality of certain persons, and the violation affects a larger group of persons that cannot be determined precisely.”[68]

According to the law, the compensation and fines of public interest imposed in the laws are paid to the central budget.

We wish to draw attention to the fact that the tényállás raises problems of legal interpretation that have not yet been solved by judicial practice:

· The relevant provision of the Equal Treatment Act speaks of the injury of a larger group of persons who cannot be defined precisely, however this definition cannot be grasped either in space or in time.

· It has not been clarified what the situation is if there is a personal injury alongside the group injury.

· The definition of “significant feature of personality” is uninterpretable. Firstly in general it cannot be established what are the essential and what are the less important features of personality. Secondly if there is no concrete injured party, or their identify cannot be established, then in a personality rights sense there is no protected legal object: i.e. there is no personality to be defended. Due to this it is totally senseless to explore the essential characteristic of a non-existent personality. (The justification of the Act, citing the practice of the Constitutional Court, states that religious or other ideological convictions, and national or ethnic affiliation can be regarded as essential features of personality, however this is not an obstacle to law-enforcers qualifying other properties as close to the essence of personality. In terms of legal security extremely serious concerns are raised by the fact that the legislator has allowed the definition to be given content by the current law-enforcement at any given time.[69])

· The Act authorises non-governmental organisations and foundations, in whose rule of association and foundation deed the defence of disadvanatged groups and personality rights features, as well as minority elf-governments to exercise the right of brining a claim in procedures launched due to violation of the principle of equal treatment with client or representative status. This general entitlement ad absurdum means that for example the disposing power of Roma minority self-government extends to procedures launched due to discrimination against women and vice-versa. (It is necessary to restrict the right of bringing a claim so that the subject must be in line with the foundation deed and rule of association.)

· Remuneration paid for injury suffered by the violation of equal treatment or public interest fines are the due of the central budget. It is questionable, however, whether we can speak of compensation in the case of an injured party without legal entity. In our opinion it can only be a question of a fine, partly because of the reparative nature of the compensation, and partly because of the concrete injured party who may later demand compensation, whose identity could not be established during the public interest trial. Without taking this into account the offender would have to doubly “set to rights the original condition”.

The Equal Treatment Act sets out special rules of proof differing from the general [70] for procedures launched due to violation of the principle of equal treatment.[71] The law declares [72] that the party who has suffered the violation or the party entitles to assert a public interest claim proves that the person or group who suffered the violation has been disadvantaged, and that the person or group suffering the violation possess one of the characteristics fixed as discrimination grounds in section 8 of the law.

An interesting question is the force of proof by “testing”[73]: if the Roma tester who meets the employment conditions is sent away on the grounds that “the position has been filled”, then what force does this proof have? The court has to establish the fact of discrimination in the concrete case of the claimant, not in cases occurring later with other persons. The test, therefore, can only offer indirect proofs, though it is true that the indirect nature of the proofs does not exclude demonstrability.[74]

Section 27-29 of the Equal Treatment Act declares that the principle of equal treatment extends to care, education and training. Section 77 (3) of the Public Education Act orders a special objective liability for damages similar to that of hazardous industrial units [75]: without regard for the culpability of the school, i.e. independently of wilfulness or negligence, to a complete extent it must accept responsibility for damages caused to pupils in connection with the pupil legal relationship. The Civil Code draws upon personality rights rules in the event of violation of equal treatment.[76]

Care and education institutions are only exempt from liability if they can prove that the injury took place due to an unavoidable reason beyond their operational sphere.[77]

The Public Education Act primarily endows care or educational institutions with liability, but [78] the background responsibility of the maintainer can also be established (as a consequence of their supervisory competences [79]), since the maintainer audits the legality of the functioning of the public education institution, and approves the professional and pedagogical programmes of care and education institutions, in addition to organisational and operational regulations. The maintainer also evaluates the performance of tasks set out in the professional and pedagogical programmes of care and education institutions, and the effectiveness of teaching work.

It is particularly difficult to take action against violations that take place on the Internet: firstly censorship on the Internet is almost unachievable, and secondly if there is no court decision against the violation within a few hours (and how could there be?) then it is impossible to prevent the unlawful material from becoming meanwhile accessible to anyone by being downloaded copied or placed elsewhere. (The number of pages accessible by internet grows daily by several million!)

Hungarian adopted the section on [80] the notification-removal procedure of the European Union directive on Electronic Trade, and integrated it into Act CVIII of 2001 on Electronic Trade Services.[81] The aim of the notification-removal procedure is not to settle personality rights violations, but to exempt the service-provider from liability. For this reason the law states that the service-provider is not obliged to check the content transmitted by them, i.e. they are not responsible for transmitted content if they did not initiate its publication and change its content; and further is not liable for stored content about which they were not aware of its unlawfulness or the facts serving as a basis of such. However, should the service-provider receive information of such facts, then they are obliged to quickly remove the offensive material or render it inaccessible.

To be more precise, the law does not actually oblige the service-provider to remove the content, which somebody has objected to. They are only found liable if they have become aware of the unlawfulness and yet did not remove the content. The unlawfulness of the content, however, can only be established by a court with scope extending to everyone. This means that the service-provider has to consider how the court would rule. If the court later finds the material unlawful, which the service-provider did not remove, then they can be made liable of neglect based on the law. However if the service-provider removes material which the court later rules as lawful, then the law does not offer protection against a content-provider claim for compensation.

The law only sets down procedural questions of the notification-removal rules in connection with copyright; it does not become clear why the procedural rules do not relate to other services connected with the information society. In addition the situation of forums, chatrooms and newsgroups is not clarified.

What can be done against opinions appearing on the Internet that are personally offensive, and violate the dignity of the community? There are two possible paths:

· Initiating a procedure for getting the opinions removed from the Internet,

· Replying, composing a counter-opinion

The Internet is the medium which lends itself to realising the idea – also represented by the Constitutional Court, that such opinions receive a worthy reply not through being silenced but through giving a counter-opinion, and everyone has the possibility of doing so since internet publication has relatively low costs and is accessible to everyone.

What is it possible to do against allegations appearing on the Internet that violate personality rights?

On the one hand a correction can be requested from the content-providers, which have registered themselves as temporary newspapers based on the Press Act.[82] (Public character in itself is not a sufficient scale, since we are only aware of a few such registrations.[83]) Secondly a personality rights trial can be launched.

Rules relating to the internet can be summarised as follows:

· Anyone, even without being personally concerned, may request that the unlawful communication be removed, naturally without abusing the right;

· the content provider is obliged to do so, and if they do not satisfy the request then they become liable for the content;

· due to the unparalleled flexibility of the Internet (see forwarding, copying etc.)it is not possible to take effective action against defamatory opinions, even in the case of a court resolution establishing the violation;

· there is, however, no legal or technical obstacle to expressing a counter-opinion;

· only sites registered as a temporary newspaper can be obliged to make a press-correction in the event of allegations or reports being spread that are offensive to a concrete person

As far as we are aware, the Ministry of Justice is contemplating new regulations for hate speech. According to the published plans incitement against communities will be placed among crimes violating human dignity from a crime against public order, or hate speech will be regulated as a summary offence, possibly amending the Civil Code.

We support all amendments that would make it more possible to take more effective action against hate speech than at present.

Chapter VIII.

The ombudsman’s legal development work.
Our standpoints and events concerning the correct interpretation of the definitions of anti-discrimination law

From the start we have attributed special attention to spreading knowledge concerning minority rights, and legal propaganda activities that would make the subjects of these rights more informed and self-aware.

In 1995 even the Minorities Act counted as new, and that was the time when Hungarian society began to become familiar with the minority self-government system. It was also the time that problems concerning implementation of the law, that had not been foreseen at the time of legislation, came to the surface. Given these facts we can report results of our undertaken legal propaganda activities such as the various resident forums, as well as the Minority Self-Government Hand book published by our office.

In the time that has passed since then significant changes have taken place in terms of anti-discrimination legislation: the new Equal Treatment Act was conceived that introduces new definitions, and Hungary as member if the European Union has become involved in international projects that aim to eliminate the lack of equal opportunities. Correspondingly we have also changed our legal propaganda activities too (which do not follow directly from the Ombudsman’s constitutional set of tasks and competences). This is why in 2005 we organised numerous seminars, 'mini-conferences" and other preparation-aimed programmes, about which we would like to give some information in this report too. We prepared this chapter in the spirit of this objective, in which we would like to present the help we offered not only to legal subjects but also to the courts, which play a decisive role in the realisation of minority rights.

1. A pioneering initiative: the so-called “amicus curiae”

We have dealt with the question the opportunity of the Ombudsman t give his opinion on the judiciary in previous reports. From time to time we receive complaints in which the supposition is put forward that the court acted in a prejudicial and discriminative way due to minority affiliation. As a consequence of section 29 of the Ombudsman Act we are not able to take significant action concerning such complaints. In such instances the Ombudsman’s “mediatory role” comes into the foreground – although we must effectively dismiss the complaint, we inform the complainant about means of legal remedy available or make contact with the state bodies or civil organisations who can offer significant help to the complainant.

However, in our opinion neither the rules determining the powers of the Ombudsman nor the constitutional principle of the independence of the courts represent an obstacle in certain theoretical questions to the Ombudsman indicating to the court in a given case which legal interpretation he considers correct of a theoretical nature.

Based on press reports our attention was drawn to a case, the subject of which was whether or not the unlawful segregation of Roma pupils had taken place and whether they had been discriminated against during their school education. In the case the Chance for Children Foundation submitted a suit against the Miskolc local government for violation against the principle of equal treatment. We were informed that – since the court of the first instance had rejected the suit of the claimant – the claimant had appealed against the ruling of the first instance to the Debrecen Court of Appeal. Based on the press reports the case appeared to be of a complicated nature, and visibly called for a complex interpretation of rules of la and legal definitions concerning discrimination, that are relatively new in Hungarian law.

The Equal Treatment Act introduced numerous legal institutions, material and procedural law rules that differ from the traditions and conventional conception of Hungarian civil law. It is a special act, through whose unique features the current legislator and law-enforcer attempted to frame the relations traditionally prevailing in civil law in such a way that they would create real equality between the “weapons” of either side. Discrimination is an unequal life relation, based on a fundamental subordination: the superior force of the person guilty of discrimination and the vulnerability of the person who is discriminated against. The unique nature of the anti-discrimination rules of law is shown by the fact that the European Union’s 2000/43/EK Directive on Equal Treatment Irrespective of Racial or Ethnic Origin recommends to the member states that they set up a special body be to apply the legal material for racial discrimination. The Hungarian legislator, alongside creating the Equal Treatment Authority responsible for implementing the ban on discrimination, also referred the realisation of the principle of equal treatment to the competences of the courts and certain public administration bodies. Behind the rules aimed at promoting equal treatment – although they are new in Hungary – there is a serious theoretical and practical international background, the knowledge of which in our opinion can significantly make easier the work of the law-enforcement bodies.

These considerations prompted us to follow the example of a legal institution long known and applied in international legal practice and professional literature (the Anglo-Saxon amicus curiae, or the German Gutachten), and to submit to the court of the second instance some objective information, expressly not connected to the given case or the ruling brought, in order to assist their work.

The amicus curiae was known to Roman law: legal academics submitted a letter to the courts in which they expressed their opinion in certain particularly complicated cases if theoretical importance. These were independent academic standpoints, not serving the interests of either party. Later the amicus curiae spread particularly in the Anglo-Saxon legal systems, particularly in the law of the Unites States and is still used today. Similar to this institution is the “Gutachten” or “expertise in legal questions” that is used in Germany. In the framework of the “Gutachten-system” the courts request the opinion of theoretical law academics and professors in the case of the more complex legal questions in the courts.

We therefore prepared material for the court which contained principles set down in significant international and EU documents, recommendations and the practice of the bodies responsible for their implementation, from the point of view of interpretation of the Hungarian Act on questions of discrimination and unlawful segregation. In the amicus curiae we did not refer to the concrete case, nor to what type of ruling we would consider correct, carefully paying attention to the need to respect the principle of judicial independence.

We were driven to compose the letter by the conviction that in Hungary one joint aim guides the various state institutions: the rule of the law and the endeavour to ensure that constitutional values are enforced. In order for this, cooperation between these institutions, whilst respecting the competences of each other, is not only possible but also desirable.

2. Familiarisation with legal development – conferences, anti-discrimination trainings and seminars

2.1. Trainings with the participation of minority media experts [84]

Following publication of our report titled “The realisation of national rights in the media” concerning the findings of our 2004 investigation, the situation of national minority media in Hungary was debated many times, in several places, in both narrower and wider spheres. Responses to the contents of the report also arrives from the government bodies concerned as well as from the heads of public service programme providers, however the situation essentially remained unchanged.

It has become a practice of the Ombudsman for National and Ethnic Rights not to cease its involvement in the given topic after publication of a comprehensive report, but to track how our recommendations and proposals are received and to register all reactions which attempts at solving the problems concerned have elicited.

Studying the situation of minority media, our colleagues became increasingly convinced that development and transformation are not necessarily only impeded by economic and legal barriers. A change in approach would be needed in order to develop better and more active communication between the individual organisational divisions, in both a horizontal and vertical direction.

Together with the staff of the Council of Europe’s Information and Documentation Centre we made an attempt, in the framework of a workshop to illustrate the validity of the opinion expressed above and to persuade experts dealing with minority media of the need for a change of attitude.

In the activities of the Council of Europe’s Information and Documentation Centre particular importance is given to promoting the practical realisation of the principles and objectives set out in the Council of Europe’s documents on minority protection. As a fresh example of cooperation between the Council of Europe’s Budapest Centre and the Office of the Parliamentary Commissioners, using the experiences and opportunities of both institutions we organised a further training for those working in national minority newsrooms, the relevant public service media employees, public officials dealing with this topic, as well as the responsible members of local governments in the interests that the way of thinking determining the place of minority media, its position in the structure of public service media and its role be enriched with innovative elements

We took a new path by organising our February workshop. We thought, however, that old deeply-rooted complaints and concerns cannot be remedied through the old, outdated reflexes. The existence of national and ethnic minorities, the life and activities of their communities conceal many values that remain hidden before today’s television watchers and radio listeners because of maintaining a traditional way of thinking.

From a perspective of almost a year we judge that our event did not fundamentally change either structures or ways of thinking. Naturally that could not even have been our aim, given that our possibilities were extremely restricted in times of both time and money. Possibly more could have been achieved by the working relation between the individual editorial collectives and the repeatedly mentioned need for new further trainings.

2.2. Educational integration in Hungary – experiences of the debate forum on December 5, 2005.

In the sphere of minority legal defence in recent years we have paid special attention to the realisation of educational rights. We conducted several comprehensive investigations on questions of the public education and higher education system that affect minorities. Alongside examining individual complaints and preparing comprehensive reports, by organising forums we also wished to provide an occasion for those parties involved in minority issues to directly meet and communicate with one another. 2002 was the first time when we organised a national forum on the present and future of minority public and higher education.

On December 5, 2005 we organised an education forum with the aim of reviewing the effectiveness of measures taken to integrate disadvantaged and Roma children. With the forum we wished to create an opportunity to present results achieved so far and for criticism that have arisen to be aired. At the same time we also aimed to lay the foundation for the comprehensive investigation into educational integration of the following year.

As a first step we asked the Education Ministry’s ministerial commissioner for integration of disadvantaged and Roma children to prepare a report on measures taken by the government in the interests of integration. We requested a reply to the following questions:

What steps have so far been taken to ensure equal opportunities for disadvanatged and Roma children within the education system?
What results have been achieved by the National Educational Integration Network?
How effective are the two models of education introduced in the interests of education (integration and skills development preparation)?
Have the elements of the integration model been built into the system for teacher training and further training? What feedback have they received about the results of this?
What problems or difficulties do the schools who receive an integration grant encounter in the course of trying to realise integration?
Has a monitoring system been set up to inspect the process, and if so, what results has it shown?

We asked four educational experts to analyse the report sent by the ministerial commissioner. We asked them to set out in the form of a study their observations on the implementation, effectiveness and monitoring of the measures.

At the event the lecture given by the Education Ministry’s ministerial commissioner for the integration of disadvantaged and Roma children was followed by the response of the educational experts who analysed the given measures.

Alongside these educational experts we also invited those who drew up the integration model and representatives from some of the schools participating in the integration programme, as well as other educational experts who are familiar with this subject. In the afternoon section of the seminar we also provided an opportunity for all participants to give their opinion on the topic, to ask questions of the lecturers and for those concerned to share their opinions.

In 2006 on the basis of experiences from the forum we shall launch a comprehensive investigation on the topic of educational integration. Firstly we shall review how the integration education model in what way and to what extent contributes to the elimination and prevention of educational segregation, as well as in what direction the educational integration mode should be developed further on the basis of experiences acquired to date.

3. Our participation in the trans-national anti-discrimination project announced by the European Union

3.1. Roma EDEM Project Educational Seminar [85]

The Office of the Parliamentary Commissioner for National and Ethnic Minority Rights since 2004 has taken part as a partner in a European Union project with the aim of promoting the educational and employment integration of Roma and of equal treatment through the cooperation of seven countries. The project extends to Spain, Romania, Portugal, the Czech Republic and Ireland, and promotes integration and equal treatment through the intervention of partner organisations and collaborating Roma organisations selected by them.

In 2005 national seminars were held on the topics of education and employment, the results of which were summarised at an international conference in Madrid at the end of November.

The education seminar we organised in May, 2005 in Pécs at the Gandhi Secondary School was on the topic of teaching the Romany/Beás languages in schools.

Language education is not a compulsory element of Roma minority elementary and secondary education, however the maintainer of the institution has to organise language teaching if requested by a least 8 parents. Since 2003 Roma language teaching has appeared as an independent funding aim in the Budget Act.

A condition for progress is that the detailed requirements for teaching of the two languages (Romany, Beás) be drawn up and announced in time. (According to our information the requirements requested have been drawn up by the experts for both languages and submitted to the ministry of Educations, however since then there have been no concrete steps taken to publish these.) Nevertheless based on the general development requirements of the mother tongue and literature in the education of each minority (the language of the given minority) as set down in the directive on minority education, there is a possibility for interested schools to draw up a local syllabus and to introduce teaching of Roma languages if there is a parental demand for this.

It is an important fact that in spite of the difficulties both Roma languages languages are taught in a few elementary and secondary schools. In these schools teaching occurs predominantly using the educational materials drawn up by the Ministry of Education, and the teachers jobb esetben – in line with the provisions of the Public Education Act – have passed a state type “C” advanced level language examination.

A fundamental failing of higher education is that there is currently no Roma language teaching training. Several higher education institutes teach one of the Roma languages in the framework of Romology training, which can even be a compulsory element of the training. Accredited state language examinations can be taken from each language, which is of decisive importance in terms of public education because of the aforementioned provision. At the same time we cannot ignore the fact that somebody who has passed an advanced level language examination, and may even have graduated in Romology, cannot be regarded as an equally qualified teacher as a teacher who has completed a teacher training course for teaching the language.

The language teachers from elementary schools as well as teachers of Romology at the universities who took part in the seminar spoke about serous delays and failings in terms of text-books, educational resources and teacher training.

3.2. “With a chance in the world of work” – seminar of the Roma EDEM Project and our Office [86]

As part of implementing the ROMA/ EDEM project here in Hungary, in October 2005 we organised a seminar on employment with the title “With a chance in the world of work”, which served two aims. On the one hand we wished to familiarise the staff of the Roma employment network established by the National Roma self-Government of the various employment programmes and application possibilities that have been launched. On the other hand we wished to offer an opportunity to the representatives of job centres and employment advisory centres to become familiar with some successful employment programmes as well as to gain information about the socio-economic advantages of employing Roma workers.

The speakers and those who joined the discussion clearly corroborated the fact that further endeavours are needed in order to help the Roma population to find employment on the legal labour market.

The participation of Roma employees in public benefit and community work programmes only provides them with a temporary employment opportunity, and can improve their living conditions only provisionally. Numerous examples corroborate the fact that integrated and permanent employment of Roma citizens can be achieved with benefits and supported even among market relations.

It is necessary, however, to stress that training and employment programmes that are segregated and not compatible with market expectations are outdated and only programmes with a complex approach can be successful.

Employment discrimination affects the Roma population in numerous ways, so there is need for greater collaboration between the organisations, institutes and representatives who were present at the conference in order to make public and eliminate instances of discrimination.

The scale of organisations dealing with discrimination cases idsever wider, and authorities can also take action in employment discrimination cases, however the defence of victims elsikkad. It is important that complaints should recognise the opportunities open to them and not be wary of realising their interests and rights.

Our participation in the project continues in 2006. In accordance with tasks defined by the project’s international leadership, we shall continue the dialogue begun at the seminar on education and employment. We shall publish the materials of the national seminars in a reference book.

3.3. Our connection to the international Equinet project

Equinet is the network of equal treatment organisations, which was formed with the aim of strengthening cooperation between the separate bodies, facilitating an information stream, and in order to assist the uniform application of the European Union’s anti-discrimination rules and to provide equal level protection to the victims of discrimination.

The aim of Equinet is to offer help to bodies dealing with equal treatment in performing their tasks by creating a forum for exchanging professional experiences and an opportunity for dialogue between EU institutions. It currently encompasses 28 organisations within 23 European countries, and secretarial tasks are carried out by the Migration Policy Group international organisation.

The project is based on an earlier two-year cooperation (2002-2004) named “Strengthening cooperation of equal treatment organisations in the interests of realisation of the equal treatment provisions”, and is financed within the framework of the European Union “Anti-discrimination community action-plan”.

In 2005 work took place in four groups within the Equinet framework: information exchange, strategic legal enforcement, flexible legal interpretation and strategy development. We participated in the activities of the information exchange working group, during which we helped firstly in developing the internet home page of Equinet which is currently password-protected; and secondly by translating and submitting our most significant cases, standpoints and comprehensive reports we contributed to the creation of a mutual database that clarifies theoretical questions and provides information on practical approaches that can mutually help the work of all parties.

March, 2006. Budapest.

Dr. Jenő Kaltenbach

[1] As early as in our first parliamentary report we drew attention to the need to lay down the legal status of minority self-governments in law, to make more precise their sphere of tasks and competences, as well as to find a solution to the deficiencies of the financing system.

[2] Under section 115/E of the C Act of 1997 on Election Procedures, before July 15 of the election year it is possible to ask the leader of the relevant local election office (according to address) for inclusion on the minority electoral register by placing an application in a box situated within the local government office. Inclusion can also be requested by letter. In that case the letter must reach the relevant local election office before July 15 of the election year. The application to be included on the register contains the following information about the citizen:

a) first name and surname,

b) first name and surname by birth,

c) place of residence,

d) personal identification number,

e) statement of affiliation to the given national or ethnic minority, and

f) signature

If a citizen applies for inclusion in several minority electoral registers, then all applications are deemed void. The head of the local election office shall bring a resolution by July 15 at the latest concerning inclusion in the electoral register. The applicant has to be included if their application contains the details listed above, and the applicant is a Hungarian citizen and has voting rights in the election of local government representatives and mayors. Should this not be the case, inclusion in the register must be denied. An appeal against this decision may be submitted to the head of the election office three days within receiving notification.

[3] Under section 26 of the LIX Act of 1993 we are bound to set out the motions we submitted to the Constitutional Court in our report. The resolution of the Constitutional Court is binding for everyone, and thus also for the Ombudsman, however the need to fully inform the Parliament requires us to speak not only of the decision, but also to set forth our opinion on this issue.

[4] In the 2002 general elections in total 1296 minority nominees were elected as local government representatives. Of these 541 persons, i.e. more than 40% of the representatives gained their place on the body through the beneficial mandate. The Roma minority gained around 70% of its local government mandates this way. In the mixed election system with the exception of three minorities (Roma, German and Slovakian), all the other communities could only achieve representation through the beneficial mandate.

[5] In theory the sphere of those entitled to elect local governments and minority self-governments is in fact different, however this does not appear in the election process due to deficiencies of the statutory regulations. All Hungarian citizens with voting rights can be included in the minority electoral register, even if they are not members of the minority community. The argument therefore is not acceptable that would exclude EU citizens from standing as minority nominees because they do not belong to the members of a minority in the legal sense. In spite of the fact that EU citizens cannot participate in the election of minority self-governments according to the current regulations (which we consider objectionable on several grounds), the bodies have no independent legitimate basis, of which it is possible to state with certainty that it complies with the criteria of minority community set down in the Minorities Act.

[6] The law was passed by the Parliament at its September 30, 2004 sitting, and was brought into force on October 6, 2004. The elections were held on December 11, 2004.

[7] The 2005 Budget Act set the total sum of support for operation of local minority self-governments at HUF 1 billion, 306 million, whereas this was cut to HHUF 1 billion, 166 million in 2006. This means that in 2005 a local minority-self government received HUF 714 thousand, whilst this figure will drop to HUF 640 in 2006.

[8] Section 27 of the Minorities Act states that: local governments shall supply local minority self-governments with the conditions for the operation of the local minority self-government as a body, as set down in the organisational and operational regulations. The implementation of this is the concern of the mayor's office. Under ensuring conditions for operation as a body and connected activities are understood in particular the following:

Supplying premises suited to the functioning of the board,

Discharging postal, delivery, typing, and reproduction services and meeting the accompanying costs.

[9] The Ukrainian community in Hungary and the self-government representing the community took this as entirely natural, on the grounds that in settlements inhabited by Ukrainians persons of Hungarain citizenship and Ukrainian nationality live in natural symbiosis with their compatriots who have settled in Hungary but do not have Hungarian citizenship and who are often of mixed Ukrainian-Hungarian nationality.

[10] Change of career is relatively frequent for teachers whose languages are sought after in the commercial sphere. This also has a negative effect on human resources in the case of national minority teaching. Significant changes, we suspect, cannot be expected even in the long term since in the future it remains likely that the commercial sphere will continue to offer more favourable perspectives.

[11] In one Hungarian town the endeavour of a civil organisation for Roma youths for Roma to receive a separate club premises was unsuccessful due to the local Roma minority self-government, since the representative board of the minority self-government in agreement with the local government representative who gained his mandate as a Roma nominee, considered that a youth institution of a similar profile for Roma alongside the culture house and youth club operating in the town would only result in segregation, create opposition between the communities, and overall be in opposition to integration and the interests of the Roma community.

[12] Section 8 (1) of the LXV Act of 1990 on Local Governments, section 42 (4) of the Minorities Act.

[13]Under section 30/A (1) of the Minorities Act, local minority self-governments, in the course of performing local minority public tasks, act within the sphere of ask and competences prescribed by the law or voluntarily undertaken. (2) Local minority self-governments in the course of conducting minority public tasks, may act according to the law within differing spheres of tasks and competences depending on local minority needs and capacity. (3) The compulsory tasks of local minority self-governments are in particular: a) discharging the sphere of tasks and competences delegated by the local government at its own initiative, b) discharging the sphere of tasks and competences delegated by another minority self-government at its own initiative.

[14]According to section 25 e) g) of the Minorities Act local minority self-governments may within the legal framework, determine within their own competence the founding, transfer and maintenance of the institution, establishment of local government association. According to section 37 (1) i), k), l), m), n), q), r) the countrywide self-government – within legal bounds – may decide independently in a resolution on: founding, maintenance, functioning, and discontinuation in particular of basic and intermediate level minority education institutes, as well as the founding, maintenance and functioning or initiation of transfer of a higher education institution or education and training in the framework of a higher education institution, and additionally the running of a theatre, establishment and maintenance of a museum exhibition space, and public collection with a national field of interest.

[15] It is necessary to highlight the present case because it included several elements of indirect and direct discrimination, as well as illegal data-handling. It also illustrates the fact that our investigations often go beyond the contents of the complaint received, since certain suppositions of the complainant that prove groundless can draw our attention to other violations.

[16] In the stream the teaching of 17 pupils with special learning needs takes place with group integration in classes 5-7 (6 pupils), 3-6. (5 pupils + 1 private pupil), and 6-8. (5 pupils). In addition in the other classes of the school there are 22 pupils suffering from mild mental disability, and integrated teaching/care of 9 children who due to problems of psychological development are permanently and severely impeded in the learning process.

[17] The costs of developing text books with a small print-run as for same as for text books produced according to market conditions. A national minority text book can cost HUF 3-5 million (typically published in 150-300 copies), whilst reprinting costs 1/4 or 1/3 of this. Due to reprinting the expenditure of the state doubles in 5 years.

[18] The full text can be found in the Hungarian version of the 2004 Annual Report on the Activities of the Parliamentary Commissioner for National and Ethnic Minority Rights. (in Hungarian)

[19] Section 7 (2) of the Minorities Act

[20] According to section 48 (1) of the Minorities Act minority educational institutions can only be used by those not belonging to the given minority, if the institution still has unfilled places after satisfying the needs of the given minority. Admission (enrolment) may take place based on rules made public in advance.

[21] József Csorba – Lilla Farkas – Sándor Loss – Veronika Lőrincz: The principle of equality before the law in criminal proceedings, Fundamentum 2002. no. 1.; Hungarian Helsinki Committee, Shades and Differences: Gypsy/Roma accused in criminal proceedings

[22] László Huszár: Roma detainees in the penal system (Belügyi Szemle, 1999/7-8.)

[23] Presumption of Guilt (study), Report on the situation of detainees (Hungarian Helsinki Committee)

[24] In the United States usually a great deal of media attention accompanies incidents of police officers being held to count for assaulting Afro-American citizens. In such cases they scrupulously ensure that the composition of the jury not give rise to suspicions, i.e. that a body composed of „whites” not be accused of “participating” in the assault committed by the police (perhaps in fact committed with racial motives) through giving a judgement of acquittal.

[25] A “de lege ferenda” piece of legislation naturally also has to take into account data protection concerns necessarily arising in connection with regulations on this question. The possibility cannot be excluded that such a legislative initiative would be rejected on the grounds that in the course of sentencing it is not allowed to know the ethic affiliation of any of the actors in the case.

[26] János Ladányi, Petar-Emil Mitev, Iván Szelényi,

[27] Flash report on poverty 2000-2003, report of the Social Professional Association based on reports of social workers.

[28] Constitutional Court 61/1994. (XII. 24.) AB resolution.

[29] Szalai Júlia: Certain questions of social exclusion in the turn-of-century Hungary. Szociológiai Szemle 2002/4.

[30] The investigation was still in process at the time of preparing the report.

[31] Report (TÁRKI Local Government Data Bank, data survey from autumn 2003)

[32] The 2000/43. EK Directive declares the principle of realising equal treatment between persons regardless of racial or ethnic origin. It is addressed to the member states of the EU, which based on the principle of subsidiarity can decide independently on how they will satisfy the provisions of the directive on the level of national legislation and with what rule of law integrated into their own legal source system. Hungary in framing the Equal treatment Act decide against a general legislative ban on discrimination, not just in terms of racial or ethnic origin.

[33] Section 4 of the Equal Treatment Act

[34] Section 5 of the Equal Treatment Act

[35] Section 6 of the Equal Treatment Act

[36] Under section 8 of the Equal Treatment Act, “Provisions that result in a person or group being treated less favourably than another person or group in a comparable situation because of his/her

a) sex,

b) racial origin,

c) skin colour,

d) nationality,

e) national or ethnic minority origin,

f) mother tongue,

g) disability,

h) state of health,

i) religious or ideological conviction,

j) political or other opinion,

k) family status,

l) motherhood (pregnancy) or fatherhood,

m) sexual orientation,

n) sexual identity,

o) age,

p) social origin,

q) financial situation,

r) the part-time nature or definite term of the employment relationship or other relationship related to employment,

s) membership of an organisation representing employees’ interests,

t) other status, attribute or characteristic (hereinafter collectively: characteristic)

are considered direct discrimination.”

[37] The regulations in force for the protection of health-care data prevent the parliamentary commissioners from uncovering constitutional breaches in the area of health-care. In the provision of health-care it can be suspected that the latency of violations is significant, also given the vulnerability of patients. The statutory restriction can disproportionately hinder the uncovering of constitutional violations concerning health-care.

[38] In the course of the investigation we established that in previous years the local government regularly employed public benefit workers. However, following the last election the mayor no longer permitted their employment. There was no other possibility of employment in the settlement, so the fine could not be changed to public benefit work and several offenders were put in custody. The mayor justified his action by the fact that the local government could not bear the costs of arranging and supervising the work. The local government also feared that they would be obliged to pay compensation for potential work-place accidents.

[39] Six years were available for the government to remedy the legal collision mentioned here are the numerous other anomalies of the Summary Offences Act. According to the draft on the new conception of the Summary Offences Act published last year there is a governmental intention to finally strike off public work.

[40] The draft prepared by the our office on action against racism and xenophobia and ensuring equal treatment (which can be regarded as the first variant of the Equal Treatment Act that entered force in 2004) also included a statement of facts on harassment due to ethnic motives. .According to the draft, which was sent to several parliamentary standing-committees and the Ministry of Justice, and received a fundamentally positive professional response “Any person who

a) due to real or imagined ethnic affiliation, display conduct entailing discrimination towards a person or group, which can lead to a hostile, debarring environment forming around group, or,

b) makes public facts, or value judgement concerning an ethnic group in such a way that it can lead to a hostile, debarring environment forming around the group,

can be inflicted with a fine of up to HUF 100 thousand.”

[41] The Austrian Federal Act of 1979 on Equal Treatment for Men and Women in Working Life regards sexual harassment at work as one instance of gender discrimination. The law sets down the definition of sexual harassment. According to this, sexual harassment is conduct of a sexual nature that violates the dignity of another person, and for whom the behaviour is undesirable, inappropriate and repellent and

1. creates an intimidating, hostile or humiliating work atmosphere for the given person, or

2. if the person concerned rejects the sexual advances of their employer or superior and this leads to a decision that disadvantages the person concerned in connection with their work relation. (Bundesgesetz über die Gleichbehandlung von Frau und Mann im Arbeitsleben. )BGBI: Nr. 108/1979.)

[42] In the case of harassment the attack does not affect the „order” or „peace” of the community in an abstract sense. Instead a person or group targeted by the offender is brought into an unpleasant situation beyond their own volition that they expressly reject. The thought of a general summary offences statement off acts for conduct of a rowdy nature that would be committed by any person who displays conduct gratuitously and continually, or regularly, in a public place towards another person or persons that can disturb, humiliate the injured party and make difficult or hinder their achievement of their purpose in the public place.

[43] Section 8 of the Equal Treatment Act

[44] Section 10 (1) of the Equal Treatment Act

[45] It is for example not possible for an individual to decide entirely freely on whether to be classed among the members of a minority group that they do not belong to. There is no free transition between identities – and this is particularly true of racial, age and ethnic affiliation – so the individual cannot chose to be treated differently without any restriction (arbitrarily) to be treated differently from what they really are.

[46] See section 17 (2) of (14/1994. (VI. 24.) MKM decree .

[47] Section 10 (3) of the Equal Treatment Act

[48] Section 20 of the Equal Treatment Act

[49] See for example 30/1997. (IV. 29.) AB Constitutional Court resolution, 35/1994 (V. 24.) AB Constitutional Court resolution.

[50] “The State can turn to means restricting a fundamental right, if the protection or realisation of another fundamental right or freedom, or protection of another constitutional value cannot be achieved by other means. For the restriction of a fundamental right, therefore, it is necessary for the restriction to comply with the principle of proportionality: the importance of the desired aim and the weight of the fundamental rights violation used to achieve the aim must be in appropriate proportion with one another. The legislator in the course of the restriction is obliged to use the mildest means possible to achieve the given aim.” (879/B/1992. AB Constitutional Court resolution)

[51] The Race Relations Act 1976 (Amendment) Regulations 2003. Briefing by the Commission for Racial Equality, June 2003, p. 4.- www.cre.gov.uk

[52] Case R v. MAFF ex parte NFU C-157/96 para 60.

[53] Justification of the CXXV Act of 2003, section 19.

[54] In order to assist the work of the codifiers in connection with the new legal regulations we not only expressed our professional opinion, but also prepared a textual draft. The normative text that we considered acceptable is the following: “section 7 (2) “The principle of equal treatment is not violated in the cases of conduct, measures, conditions, neglect, instructions or practice based on the characteristics listed in section 8 (hereinafter together: provision), whose use serves a lawful aim, causes the least possible disadvantage in order to achieve the given aim, and the disadvantage caused in proportion to the importance of the desired aim.”
(3) Should the provision concern a fundamental right in the Constitution, only the enforcement of another fundamanetal right, the protection of constitutional values or other aims in line with the Constitution can be considered in the sphere of lawful aims. In this case the principle of equal treatment is not violated if it is unavoidable in order to realise the aim above, causes the least possible disadvantage in order the achieve the aim, and the disadvantage caused is in proportion to the desired aim.”

[55] 47/1994. (X. 21.) AB Constitutional Court resolution, 28/1995.(V. 19.) Constitutional Court resolution.

[56] In the lack of these guarantees, the Constitutional Court qualified the Government’s right of disposal over the budget of Magyar Televízió and Magyar Rádió as indirect exercise of influence, and annulled the unconstitutional regulations.

[57] Section 13 (4) of the Equal Treatment Act, amended by section 65 of Act XXVI of 2005 (Effective: from 10. 5.2005)

[58] We can speak of a framework statement of facts if the legislator only refers to the conduct committed in the statement of facts, and its concrete content is "filled” by another rule of law. This technique can significantly hinder the task of the law-enforcer since it necessary to constantly pay attention to amendments to the norms that fill the content. In addition the framework norms in numerous cases, as here, only refer generally to the rules that fill the content, which according to the practice of the Constitutional Court is at odds with the principle of clarity and harmony of norms that is understood as a part of legal security.

[59] It is fairly unique that the rule of law – curtailing the powers of the notary – gives exclusive powers to a non-summary offences authority. Behind this can lie two reasons: one is the circumstance that the local government is the maintainer of the school (and at the same time in given cases issuer of the school’s working permit!), and although the notary is not a local government post holder, it is still more fortunate if the local public administration remains out of a local school conflict. The other reason is professional: the staff of OKÉV acting in such a case presumably have considerable pedagogical experience, and with their greater competence are able to judge both professionally and legally the pedagogical conduct against which an objection has been raised.

[60] We should not forget that accusing or suspecting somebody of discrimination in connection with their work represents a serious responsibility, that can entail professional and moral stigma for the concerned, not to mention the fact that some kind of suspicion also remains even if the “accusation” is found to be entirely without basis.

[61] Firstly we can not make a criminal report, because degradation and humiliation affecting communities is not a crime. Secondly we are not entitled to launch civil trials. (The Constitutional Court excludes sanctioning of detraction as conduct committed as incitement against a community for two reasons: 1. there exist means to protect personality that restrict freedom of speech in a narrower sphere and are less harsh, but are nevertheless effective means of personality defence; 2. detraction does not represent a direct and clear danger to public order.)

[62] We start on the premise that membership of a community is a personality right since the community is the external inertia system of the given person; one aspect of self-identification and determination of identity.

[63] Legal practice, as far as we are aware, has not yet given an answer to the question of what happens if as well as the injury affecting the whole community, there are injured persons who can be identified by name.

[64] Based on the operative law, if the injured person can be identified, in order to defend their reputation, the person whose rights have been injured – the reason for detraction my be affiliation to any group or another essential property or personal attribute – based on section 84 (1) of the Civil Code can launch a personality rights trial, and based on sections 179 and 180 of the Criminal Code can initiate the launch of a criminal procedure for slander or defamation.

[65] Section 20 (1) of the Act.

[66] 18/2004. (V. 25.) AB Constitutional Court resolution.

[67] In our opinion the journalistic approach of immoderately magnifying the real significance of certain is damaging because this does not serve the tasks set out in the Press Act: to inform the public reliably, accurately and quickly, and does not promote understanding of the connections between the social phenomena.

[68] Section 20 of the Equal Treatment Act

[69] Under 9/1992. (I. 30.) AB Constitutional Court resolution “legal security makes the state – and primarily the legislator – obliged to ensure that he entirety of the law, its braches and individual rules of law are clear, harmonious, and reliable and predictable in terms of their functioning for those addressed by the norms.”

[70] The Civil Code contains the general rules of proof. According to section 164 (1) the legally significant fact needed to decide the case must be proven by the party who cites this during the case, and in whose interest it is for the court to accept this.

[71] Prior to the Equal Treatment Act entering into force, the provisions of the Labour Code set out the prohibition in discrimination during the employment relationship as well as the reversal of the burden of proof. The amendment of 2001 framed the definition of indirect discrimination, and the scope of the law was also extended to processes preceding the establishment of the employment relationship.

[72] Section 19 of the Equal Treatment Act

[73] We address the subject of rules of proof in more detail in chapter VI. of this Report.

[74] Pursuant to section 206 (1) of the Civil Code, the proofs, including indirect proofs, must be judged individually and in their completeness, by taking into account the aspects of logic and lifelikeness.

[75] Nurseries, schools, student hostels and organisers of practical training bear responsibility for damage caused to children and pupils in connection with nursery placement, pupil legal relationship, membership of a student hostel, and practical training in complete measure without regard for culpability. For compensation the provisions of the Civil Code must be applied, with the addition that care and education institutions and organisers of practical training are only exempt from liability if they prove that the damage was caused by an unavoidable reason beyond their sphere of functioning. Compensation does not have to be given for the damage if it is caused by the unavoidable conduct of the injured party.

[76] Section 76 of the Civil Code

[77] The benchmark ruling is BH2003. 62.

[78] Section 102 (2).

[79] Section 102 (2).

[80] Directive 2000/31/EC.

[81] Sections 8-13.

[82] Section 79 (1) of the Civil Code states: “If a newspaper, magazine (periodic newspaper), radio, television or newsreel publishes or spreads an untrue fact concerning somebody, or portrays facts in a false light, alongside the other claims allowed by the law, the given person may demand that a statement be published from which it becomes apparent which facts given were untrue and which facts were portrayed in a false light, and what the real facts are (rectification)".

[83] In order to qualify as a periodic newspaper it is only necessary to be registered. This however established the obligation to make press corrections. Before being registered the periodic newspaper may not be circulated. The press correction obligation does not apply to those organs that are not registered as periodic newspapers, although it is possible that in certain cases there are few differences between them and an online newspaper.

[84] The event took place at the Office of the Parliamentary Commissioners on February 7, 2005.

[85] The seminar took place in Pécs in May, 2005.

[86] The seminar took place in the Office of the Parliamentary Commissioners on October 24, 2005.