White Booklet 2000

The annual report of the Legal Defence Bureau for National and Ethnic Minorities (NEKI)

White Booklet 2000

The annual report of theLegal Defence Bureau
for National and Ethnic Minorities (NEKI)

a publication of The Másság foundation

Copies by Books in Print Corp.

© Másság Foundation, NEKI, White Booklet 2000, Budapest

Contents

The Year 7

II. Other cases taken on in 2000

III. Cases taken on prior to 2000 81

IV. Statistics concerning cases taken on by NEKI 89

V. About Discrimination 93

VI. NEKI 95

The Year

NEKI has received 171 complaints this year. Following detailed research, we have established the case for discrimination in 39 instances. In most cases, discrimination has been indirect. As shown in the following examples, the majority of these cases have uncovered violations of rights committed negligently or deliberately by the police, the prosecution or the courts.

The police were looking for a tall blonde woman but instead arrested Aladár H., a short Rom wearing a moustache (p. 18). He was remanded in pre-trial detention for six months, later the investigation against him was terminated and he was released. Scarcely a word was said to him during his six months in detention, which the court automatically prolonged. He was kept deprived of his liberty mechanically, according to old routine, as is unfortunately characteristic of Hungarian criminal justice.

In another case (p. 58) the victim, whose daughter had been killed in a car accident, had to be assisted in his heroic fight to at least have the perpetrator indicted. NEKI appealed to the Attorney General’s Office against the policeís decision to terminate the investigation. Meanwhile the family received a letter full of anti-Gypsy and humiliating expressions. The police, however, had not reacted until NEKI filed a number of complaints in this regard. I believe these two cases aptly demonstrate how the people entrusted to make the justice system work become the perpetrators of discrimination and why NEKI thought it necessary to create the category of “discrimination in the justice system”.

One could of course take another example, that of official attitudes towards those Roma who run foul of crimes committed by non-Roma as compared to attitudes in a reverse situation.

Public authorities violate the law if they fail to act or respond to complaints. I would rather call this inactivity a silent complicity. I should certainly add that many authorities strive to fulfil their duties and see us as their partners.

Out of the 39 cases of discrimination 4 related to employment rights, 5 to the proceedings of local governments, 5 to the violation of civil rights, 6 to education and 6 to housing rights.

Discrimination is present in all walks of life and although the law is a significant tool in remedying it, it is far from being the only one. What is the social impact of a test case or a landmark judgement? We set out to study the impact of these proceedings in the coming year. We will follow up on a number of cases, which had been resolved in recent years. We will interview the victims and investigate whether and to what extent the relationship between warring neighbours had been soothed; what has happened to the policemen who had been convicted for ill-treating Roma; have the attitudes of the restaurateur refusing to serve Roma changed?

I realise that a handful of groups setting out to defend the rights of minorities may not have a sufficiently widespread impact. Our whole society needs to contribute their share to make this effort a successful one.

I am asking for your contribution in this endeavour.

Director of NEKI

Case Studies 2000

P. village I.

On 17 March 2000 Sándor K., an inhabitant of P. drove to K., where he had been severely beaten by a number of locals. He had sustained several injuries, including a broken jaw. The reason for his beating is still unknown to us but we have reasons to believe that the perpetrators had set out to take vengeance for their previous grievances, whether real or supposed. Erzsébet K., his sister who had arrived at the village with her husband, László K. and two other people from P. saved the victim. When she tried to take her brother away from the scene, the perpetrators threatened and verbally abused her. The group also attacked her companions but they managed to drive to P. The siblings also made their way back to P.

During the night, a group of 15–20 driving down from K. attacked Mrs. Oszkár Cs., her son and her partner, István M., one of the men who had earlier escaped from K. by car. The group probably attacked this family because the car in which the men had escaped had been registered under the name of Mrs. Cs. The perpetrators damaged the car and tried unsuccessfully to enter the house. After they had beaten Mrs. Cs. and her son, they left. Eyewitnesses claim that the DP of G. was also among the perpetrators. Later they left for the house of László K. and ruined one of the cars parked in the courtyard. Mrs. László K. and her two children managed to hide at the neighbours’. However, one perpetrator had pushed an old woman living in the house, a result of which she sustained a severe injury on her knee. Still, the attackers could not find László and Sándor K. and left the scene. The Ks claim that minutes after hiding themselves, they heard shots and saw a gun being fired.

That night the local minority self-government (including László K. as a member) convened a meeting dealing with the above incident. According to their decision, the president reported the incident to the police the next day. NEKI interviewed the victims and submitted the powers of attorneys signed by Mrs. Cs. and László K. to represent them as victims in the proceedings before the Prosecutor’s Investigation Department (as a policeman was alleged to have taken part in the incident).

We found that the inhabitants of K. and P. had suffered a long-standing conflict, the reasons of which could not be clearly established. A number of people from K. had grudges against Sándor K. Still, it was unfathomable why the perpetrators attacked the families in the middle of the night and injured so many of them so brutally. The victims and other – mainly Roma – villagers told us that they had not felt safe since the incident. They recounted instances involving threatening telephone calls and bullying from the perpetrators who drove over to their houses every now and then to circle around the buildings. Pursuant to our request, the chief of the competent police station informed NEKI about the events and the probable cause of the crimes. He also informed us that the police were aware of the long-standing conflict and that they would do their best to ensure the safety of the villagers. The neighbouring villages, however, belong to different police stations, which renders actions problematic. Notwithstanding the problems mentioned by the police, the fact-finders left the village believing that the police would be able to prevent further conflicts.

We later learned that harassment against the villagers continued and that they did not feel secure when travelling through K. Unfortunately, they must drive through K. on their way to neighbouring towns or to the capital.

The Prosecutor’s Investigation Department launched an investigation into disorderly conduct and other crimes. A number of objects used for beating were seized. NEKI has on numerous occasions taken part in cross-examinations of victims, suspects and witnesses, which, however, have been mostly unsuccessful due to sudden flaws in the memories of suspects and witnesses named by suspects. The suspects certainly have the right to refuse to give testimonies. Witnesses, on the other hand, are bound by law to testify about the incident. They face criminal liability for withholding or changing the content of information. The investigation is still under way.

P. village II.

The following day a colleague from NEKI, accompanied by journalists, visited the victim and his relatives. They alleged that the present incident was also the result of the conflict described above. Moreover, the people concerned were almost the same, but in any case, the conflict occurred between people from P. and K. respectively. The Prosecutor’s Investigation Department handling the case is the same, as is the counsel, attorney Imre Furmann acting on behalf of the victim.

He was present when the suspects and witnesses re-enacted on the scene what had happened during the night of the incident. Differences between the two sides occurred when it came to establishing who started the fight, why and with what intention did the off-duty policeman arrive with his friends from K. to the scene. The victim’s counsel asserted that based on the available data and the re-enactment of the events, it is necessary to reprimand the suspects in pre-trial detention. They, however, have not been arrested in relation to any of the incidents.

The investigation in this case is also under way.

There are certain common features that provide further insights to both incidents. 1. The nature of the attacks: The victims of the first case mentioned how the perpetrators broke into their courtyards shouting anti-Gypsy abuses. In the second case, the victim and others concerned “on his side” were all of Roma origin. 2. A policeman was among the perpetrators during both incidents. Whilst his role in the first incident is unclear, in the second it has been established that he fired the shot.

Although a detailed account could and probably should be given concerning the proceedings, it seems more sufficient to focus on the background#, as the tension does not seem to cease. What lies behind the conflict, why has it triggered such tremendous fury amongst the villagers?

It seems as if inspired by a strong “sense of justice”, the villagers of K. were trying to remedy their grievances the way described above. Thus, the liability of the group attacked is also to be examined, even if it may not explain why things have come this far. The children, the old woman and the parents attacked during the first incident are still strongly under the influence of the attack – they have suffered distress, undergone hospital treatment and moved from their house.

NEKI is convinced that the police could have done more to prevent the death and other incidents. As mentioned above, in March 2000 NEKI requested the competent police station to intensify security measures. We are certainly aware of how difficult this task is, but feel that our concerns have not been acted upon. On 20 June 2000, failure to act resulted in the death of a villager of P. Even if the police officer was lawfully defending himself after he had rushed to the aid of his friends, one cannot agree with his actions. He was in a position to ask for backup from the competent police station.

Despite of the gravity of the crimes and the fact that a policeman had been involved in both incidents, and requests in this regard, the Prosecutor’s Investigation Department has not rendered the suspects in pre-trial detention, thereby failing to ensure that the proceedings would not – contrary to Section 92 lin. b, of the Code on Criminal Procedure – be flawed or rendered impossible.

Unlawful detention

On 16 January 1999 Csaba V., Attila Sz. And Zsolt V., the victims – two of them under 18 – had spent the night in a discotheque in T. According to the indictment drafted in June 1999, they had been entangled in an argument with a local couple. One of the latter, a girl, had felt offended and once at home, she recounted to her father what had happened. The father had been angered by what she had said and left for the discotheque taking his baton with him. On the way there, he met the local DP and a civil guard, whom – as stated in the indictment – he asked for help. The couple and the three men arrived at the scene together and spotted the three victims in a narrow street. The girl pointed them out and her father started hitting Csaba V., using his hands and his baton. Shortly, a number of other people present at the venue also joined in, beating all three of the victims. The on-duty DP stood by without taking sides in the fight. On one occasion a victim had asked him for help but he did not intervene. On another occasion, he stated that he would resolve a similar incident in a similar manner.

After the beating stopped, the DP called on the victims to get in his police car. In an absurd situation he brought them to the police station, being escorted by the perpetrators.

The beating of the victims continued in the building, where the perpetrators were seeking remedy for their real or supposed grievances in an utterly humiliating manner. As the indictment reads, one perpetrator forced a victim to kneel and ask the girl to forgive him. Despite of the bleeding wound of a victim, the beating continued. Later, a gun had also been produced and held against the head of a victim. Finally, the beatings stopped and the perpetrators left the police station.

However, the DP had to officially account for the arrest and short-term detention, i.e. he had to draft a report about the coercive measures applied. In the report he stated that the victims could not identify themselves, which justified their arrest. T. is a small village where everyone knows the other. On 18 January 1999, however, the DP reported the victims for having violated their obligations relating to ID cards.

Meanwhile, the three Roma youths had also sought assistance from an organisation in D. They were referred to attorneys István Barcsi and Judit Bánszegi who helped them file an official report with the Prosecutor’s Investigation Department – as a policeman was also suspected of involvement in the crime. The Town Prosecutor indicted the perpetrators for unlawful detention, disorderly conduct and for causing light bodily injury. The case is pending before court.

István M.

István M. alleges that prior to the fight he had been sitting under a tree. His wife and the trainer of the team from B. were standing next to him. The trainer pushed his arms up in the air, which attracted attention from the organisers. The organisers – László N., an off-duty policeman among them – went up to them. The policeman hit István M. once and he lost consciousness. When he came to, his wife was helping him stand up and walk to the bus. He was sitting in the bus when the policeman got on to single out the people he claimed had beaten him. László N. and his wife were also selected and carried to the police station in E., where it transpired that the policeman remembered the event differently.

The victim turned policeman recounted the incident as follows: “I also went to see the match. The second half was almost over when my friend, an organiser of the match, told me that there might be some problems, the referee and the notary should be escorted to the lockers.

I had gone onto the pitch by the time the team from B. scored for the fourth time and I definitely recognise István M., defendant I, as the person who was the first to come on the pitch. He was holding a beer bottle. I showed my service card and informed him of my rank. He shoved the card out of my hand. His wife following him then shouted: he is not in uniform, let’s beat him. She was holding a 2 litre plastic coke bottle, which still had some coke left in it.

It was István M. who first hit my forehead with the beer bottle, then came the others. The organisers had by then been trying to get me out of there”.

Based on the policeman’s testimony, proceedings were instituted against István M., his wife and several other people on counts of group violence against an official and of causing light bodily injury.

On 11 January 2000 the Town Prosecutor indicted István M. and his accomplices.

On 22 March 2000, the court of first instance found the defendants guilty on counts of group violence against an official and of causing light bodily injury. István M., defendant I. was sentenced to a two and half year imprisonment. His was prohibited from exercising his civil rights for three years.

The court argued that the defendants going on the pitch had been preventing the victim from taking lawful measures. The court disregarded the testimonies of witnesses supporting the accounts given by the defendants, but admitted all testimonies supported what the victim had said. The court was only satisfied with the credibility of the latter witnesses. Two of the latter were friends and three of them were colleagues of the victim.

The facts that defendant I. had not had previous convictions and that he was responsible for a child were taken into account as mitigating circumstances. The leading role he had played and the fact that he had committed the crime under the influence of alcohol were taken as aggravating circumstances. He appealed against the judgement.

István M. sought assistance from NEKI after he received the written judgement. He asserted that he was innocent. We found that the authorities had not thoroughly established the facts, had not resolved discrepancies between testimonies, and had not investigated all relevant circumstances, which had lead to an ill-founded judgement.

The court established that the crime had been committed on Thursday, 17 June 1999. It is clear from the file that the match was held on 27 June 1999. The court also found that all witnesses present had asserted that the crime had been committed on the pitch. However, the footballers recounted that the fight had occupied everyone while the match had still been going on. The court heard one witness about this fact, although there had been at least 22 players able to testify. The witness remembered that the fight broke out on the edge of the pitch. Defendant I. had not been tested for alcohol when brought forth, still the court was satisfied that he had been drunk when committing the crime. István M. had been denying allegations concerning his alcohol consumption. He asserted that he was sick and had to take medicines, which had prevented him from drinking.

NEKI commissioned attorney István Barcsi to represent defendant I. before the court of second instance. In the written appeal, the counsel argues as follows: “In the light of a note taken by the trainee prosecutor, according to which the victim had mixed up people taking part in the proceedings, it is doubtful whether or not he could indeed single out defendant I. and his wife from the crowd.”

As established in the judgement, István M. who was the first to go on the pitch hit the victim with a beer bottle held in his hand. This finding may be based on the statement of a witness, which is contrary to the victim’s account, according to which it was a woman who started the fight. The court tried the case on two occasions, during which witnesses and defendants were only partially confronted. Also, confrontation was not ordered in relation to a number of relevant issues. The court admitted to confronting testimonies without resolving the contradictions. For example, according to one testimony defendant I. hit the victim on the head on one occasion. According to another testimony, he also threw the bottle at the victim.

Several witnesses testified that Gyula L., deceased since the incident, was the person who hit the victim on the head. Some other witnesses heard him recount this when being ordered out of the bus. This allegation, however, has not been counter-checked during the proceedings.

NEKI and the defence counsel have concluded that the client had been sentenced to imprisonment on the basis of a superficial investigation. The fact that the client and his wife stuck to their accounts during the entire proceeding was not taken into account. The victim, on the other hand, had altered his testimony in many respects. Furthermore, the fact that István M. had not had a criminal record and that he could write no more than his name – the judgement established that he had only finished two classes in primary school – did not seem to be relevant.

Establishing the precise sequence of events did not prove important either. Concluding the case was the priority. In a country where criminal proceedings often drag on for years, less than a year was needed until the first instance decision had been delivered, even though the case involved a greater crowd.

We have often found that sentences are lenient in cases involving Roma victims, whereas Roma defendants receive harsher sentences than their non-Roma counterparts would in a similar situation. The following cases demonstrate this. In the summer of 2000 an off-duty policeman killed a Roma man. The crime had been investigated for over six months. The suspect has not been detained and is still serving as a member of the police forces.

In August 1998 Miklós R. and Mihály H., two Rom were mistreated at the police station during interrogation. The Prosecutor’s Investigation Department had on numerous occasions terminated the proceedings. Pursuant to NEKI’s complaint to the Attorney General’s Department Overseeing Investigation, the proceeding had been reopened. The case is presently pending before court on counts of forcible interrogation and severe bodily injury.

The defence counsel requested that based on Section 258 sub. 1 of the Code on criminal procedure the first instance judgement be altered and defendant I. acquitted, alternatively, pursuant to Section 261 sub. 1 the judgement be defeated. In terms of case-law, especially with taking Decision No 154 of the Criminal Section of the Supreme Court into account, the punishment imposed on defendant I. is unreasonably harsh. Defendant I. has a clear criminal record, responsible for his children, has never been suspected of criminal behaviour. I kindly request the [second instance court] not to impose imprisonment on him”.

On 13 November 2000 the second instance court tried the case and altered the penalty of defendant I. to two years imprisonment suspended for four years. We have not yet received the judgement in writing.

Aladár H.

Aladár H. was consistent in stating that he had not committed the crime and had never been to the scene of the crime. He wore a moustache, did not dress as a woman and has not since changed his height. Éva F., the other suspect, on the other hand, repeatedly stated that she had no accomplices, she had been present in the victim’s flat on her own.

The client became a suspect as a result of the victim’s statement following an identification show. He asserted that he recognised the perpetrator’s nose, eyes and upper lip, even though at the time the crime had been committed, the offender had worn a blonde wig and women’s clothes. This statement substantiated the ordering and prolonging of the client’s pre-trial detention. Aladár H. complained against the identification show, claiming that Section 86 sub. 3 of the Code on criminal procedure had grossly been transgressed when he was shown amongst three white persons. The prosecution rejected the complaint as unfounded. It shall be noted that the photos taken during the identification show had not been attached to the case file, because they had had to be eliminated due to technical reasons.

Available testimonies questioned the basis of the client’s detention. Prior to the identification show, the victim had defined the perpetrators as both being female. He testified that the missing suspect had been a 1,80 m tall, non-Gypsy woman. The client is a thin, 1,68 m tall Gypsy man. Furthermore, it had been established that the saliva traces found on a cigarette butt left at the scene were not Aladár H’s.

Based on the above, the prosecution finally terminated the proceeding against the client, arguing that it could not be proved beyond reasonable doubt that Aladár H. had committed the crime. The prosecution found that it was not clear from the file how the client had caught the attention of the detectives.

The client spent six months in pre-trial detention.

Assisted by NEKI, Aladár H. filed a lawsuit for criminal compensation1#, requesting 450.000 HUF in lost wages and 1.550.000 HUF in non-pecuniary damages caused by physical and mental suffering. He argued that since his release he had been in need of psychiatric treatment as his already unstable state had deteriorated as a result of hardships he had encountered during the criminal proceedings, as well as during the state of being closed up in a prison cell. He had suffered from claustrophobia since his childhood. These symptoms had been made worse by the conditions of detention. His physical health had seriously deteriorated during pre-trial detention. He had lost 15 kgs during two weeks of detention and consequently had to be regularly treated whilst in prison.

Attorney János Bólyai represents the client. The case is pending before court. No date for trial has yet been set.

1 Criminal compensation is governed under the Code on Criminal Procedure and is approximately equivalent to "compensation for wrongful conviction and malicious prosecution" under English law. The Hungarian regulation refers back to the provisions of the Civil Code on damages.

M. Alexandru

Alexandru M. spent 19 months in pre-trial detention, despite the fact that he had not had previous convictions, whereas István Sz. had a criminal record.

Throughout the entirety of the proceedings both defendants denied the charges and provided detailed testimonies covering the period of the crime. As a result of the three-year long proceedings, the Supreme Court found that the defendants’ guilt could not be proved beyond reasonable doubt as stipulated under Section 214 sub.3 lin. b, of the Code on criminal procedure.

Not having an income during the time of detention, the victim incurred a greater amount of debt on the real estate he had just purchased. While in pre-trial detention, his clothes and household goods had been stolen. He had to borrow from his neighbours to restart has life after his release. He had been released for 45 days during the period of pre-trial detention, which – he alleges – in fact deteriorated his situation. He suffered from mental anguish and gave up all hope following his second arrest. Enduring detention was made worse by the fact that he could not understand either his cellmates or the prison guards. He had fallen sick on numerous occasions while in detention and attempted suicide, as a result of which he had been separated for a period of time.

He complained of the fact that following his interrogation after arrest, it took the detective ten further months to cross-examine him again. Furthermore, he thought it injurious that the other suspect had not been detained at all. He had been under a curfew order, although he had been suspected of the same crime, his lifestyle had been similar to that of the victim, moreover, the other suspect had had previous criminal convictions.

Pursuant to Section 383 of the Code on criminal procedure, the victim filed a lawsuit for criminal compensation covering the 19 months spent in pre-trial detention. He is claiming 900.000 HUF in pecuniary damages, i.e. for damnum emergens and lucrum cessans, and 2.000.000 HUF in moral damages. The case has not yet been tried.

Lajos S.

In December 1997 the client filed a lawsuit for criminal compensation with the Town Court, requesting 150.000 HUF in damages. The court dismissed the claim arguing that according to the Supreme Court’s relevant guidelines, the plaintiff should have based his claim on damages resulting from court proceedings. The defendant, the State of Hungary requested that the claim be rejected as the courts had not violated relevant legal norms either in the basic criminal proceeding, or the proceeding aimed at merging the sentences. The defendant argued that the proceeding had started in due time just as the courts had fulfilled their duties in a reasonable time. The final judgement fit the legal requirements, the courts had not acted in an unlawful or reckless manner, which in turn excluded any civil liability on the behalf of the defendant.

Based on the arguments below, the court of first instance rejected the client’s claim. It found that the liability under civil law for damages caused in administrative or judicial capacity may be established as long as the following are proven: unlawful conduct, damages, causal link between these two elements and responsibility under civil law. The plaintiff could not avail himself of the burden of proof, whereas the court was satisfied with the defendant’s explanation provided for the non-existence of its legal responsibility. The court summarised its arguments as follows: “Given that a mistake might have occurred during the consideration of the case, no responsibility under civil law may be established in regards to how careful and cautious the court had been. As argued by this court, in lieu of civil liability, the defendant may not be held responsible for damages.”

NEKI learned about the case after the above judgement had been delivered and provided the client with legal representation. Attorney János Bólyai acts as counsel in the case.

In the appeal the counsel requested the Supreme Court to throw out the first instance judgement and order the court in question to pay 150.000 HUF + interest in damages. He invoked Section 50 sub. 1 and Section 55 sub. 1 of the Constitution, according to which “everybody shall have the right to liberty and security of their person, nobody shall be deprived of their liberty save for reasons and in proceedings stipulated by law”. Furthermore, he argued that the court proceeding in the case had violated the above constitutional provisions when unreasonably delaying the delivery of justice it handed down the joint judgement well after the plaintiff had spent in prison the time stipulated in it. Had the court proceedings been in compliance with the provisions and the case law relating to trial within a reasonable time under the European Convention for Human Rights and Fundamental Freedoms, the personal liberty of the plaintiff would not have been restricted for unreasonably long.

In the counsel’s view the “merging of sentences does not require complex legal techniques to be applied. Thus the damages were caused by the unreasonably and unfoundedly slow court proceedings, which served as the basis for the court’s culpability under civil law. Therefore, pursuant to Section 339 and 349 of the Civil Code, the court liable shall pay the damages for the delay.

Everyone within the territory of the Republic of Hungary – including re-offending criminals – do rightly expect from the criminal justice system to ensure that convicted criminals spend as much time in prison as stipulated in their sentences”.

The case is pending before the Supreme Court.

Ibolya B.

Following her release, the client tried to reintegrate into society, she wished to take on employment. Not having professional skills, however, she could only take on jobs demanding physical work. On the other hand, she could not stay in such jobs for longer periods, because she fell sick as a result of physical pressure. In January 1997, due to her 40% working disability, she requested an early retirement for medical reasons. The competent Directorate of the National Pension Scheme rejected her request, because she had not spent as much time in employment as required for her age group. She then worked from September 1997 until March 1998, when her contract expired.

In the fall of 1998 her health deteriorated so much that she needed to be hospitalised again. From 17 November until 30 December 1997 she was treated in the Pulmonology Clinic of the University of Medicine in Budapest. As her state stagnated, she was diagnosed as having a 100% working disability. However, when requesting state pension, she encountered the same problems as before. Due to her health condition, it seems certain that the client will never be in a position to spend enough time in employment so as to qualify for state pension. Following her release, Ibolya B’s life has changed to a great extent. According to the expert opinion issued by the National Institute of Forensic Medicine in February 1999, by the age of 32 the client had completely lost her ability to work. Her interpersonal relationships have deteriorated. She has become more introverted, her friends have become gradually alienated from her. It is basically her family that she still keeps in contact with. They help her to overcome reoccurring health problems. TB has had an impact on her material, moral and mental state. As the consequence of distress and the constant fear from death resulting from her illness, she has become mentally unstable, also requiring frequent medical treatment in this regard.

In 2000 she learnt that due to the fact that she had contracted TB in prison, she could claim damages from the Prison Administration. Under Section 35 sub. 1 of Act-Decree No. 11 of 1979, the Prison Administration is liable for damages sustained during imprisonment, as stipulated in the Civil Code.

She first sought remedy from the Ministry of Justice (the superior of the PA) but was referred to the Prison Administration itself. Under Decree No. 13/1996 (XII.23.) of the Minister of Justice, if a convict is released before the decision relating to his/her damages is brought, s/he shall seek remedies directly before the court. The client sought her damages from the Prison Administration, where – with reference to the ministerial decree - she was advised to pursue her claim before the court.

Ibolya B. then sought legal assistance from NEKI. We found that the Prison Administration caused damages to the client in their official capacity, since prior to admission to a prison, detainees shall undergo medical examination1.# The client had been examined by a doctor and been found healthy. She has under all probability contracted TB while in prison. Securing the health of convicts is an activity that certainly falls within the official management and organisation of any prison under public law, for medical treatment shall under law be provided to all inmates2.# NEKI is of the opinion that damages have been caused as a result of neglecting these duties.

The client filed a suit pursuant to Sections 339 sub. 1 and 349 sub. 1 of the Civil Code, claiming pecuniary and general damages.

On 13 May 2000 the Budapest Court found it lacked competence in the case and referred the claim to the Central District Court of Pest, because “in the Court’s view, the damages as claimed by the plaintiff relate not to the defendant’s managerial and organisational duties as stipulated under public law, consequently not to the defendant’s official procedure within the sphere of its administrative competence.” Attorney Imre Furmann, counsel for the plaintiff, appealed against the above decision and is now expecting a ruling from the Supreme Court.

1 In terms of both Section 6 of ministerial decree No. 8/1979 IM rendelet and of Section 2` of decree No. 8/1996 IM rendelet, effective at the time of the incident and at the time of the complaint respectively.

2 Pursuant to Section 38 of ministerial decree No. 9/1980 IM rendelet.

Katalin F.

The door to the manager’s office was then closed and the client could not hear more. A couple of minutes later the manager went up to her and said there were no more vacancies. The vacancy in fact, was filled in May. The client was not asked about her education, skills and abilities. The manager made a decision on the basis of her ethnic origin.

Utterly humiliated, the client left the hotel in tears. On the way home she recalled having heard about the parliamentary commissioner for national and ethnic minorities and resolved to seek assistance from his office. Not knowing the address, however, she sought assistance from two social workers. They provided her with the minority commissioner’s telephone number and address. The following day she arranged an appointment with the office and officially filed her complaint on 2 June 2000. The minority commissioner found he lacked competence to proceed in the case, because pursuant to Section 16 sub. 1 of Act No. 59 of 1993, the parliamentary commissioners may only deal with complaints filed against public utility companies and public authorities. However, the minority commissioner informed the client about her rights and the remedies she might seek for the injustice she suffered.

The client filed a complaint with the Labour Inspection and requested that the hotel be inspected. Following the advice given by the minority commissioner, the client then contacted NEKI and requested legal assistance. The hotel could not be tested with the method employed by NEKI, as by the time the client had contacted us, the vacancy had been filled and two months had passed.

Attorney Imre Furmann represents Katalin F. in the legal proceedings.

Labour inspection includes the inspection of cases involving discrimination1.# The burden of proof lies with the employer, who therefore is under the obligation to prove that his/her actions were not contrary to provisions prohibiting discrimination2.# Despite the fact that a presumption under law serves the victims’ interests, there are a number of concerns which are in relation to the procedure. It is yet unknown how different courts and other state authorities interpret the given provision. What shall serve as a starting point? Is it enough to establish that a certain employer had vacancies when the victim applied for the job? In the present case, the employer himself admitted that he was seeking chambermaids and that the job was only taken in May. He, however, denied ever seeing the applicant or making any comments about her ethnic background. Other employers present at the time supported his statements. Hence, the employer was satisfied that no discrimination had occurred, as nobody had ever seen the applicant. In order to establish the violation of Katalin F’s rights, the classic method of putting forward evidence had to be chosen, i.e. the applicant had to prove that she had been at the hotel and had met the manager.

On 27 September 2000 the Inspection terminated the investigation. The Inspection found that the testimony given by the social worker did indeed correspond with the applicant’s account of events. Furthermore, it established that the hotel advertised its vacancies in a newspaper and that the job had not yet been taken on 19 April 2000. The decision, however, reads as follows: “I have not found evidence that could directly prove that the applicant applied for a job or even went to the hotel. The witness testimonies were partially contrasting to the applicant’s account of the events. The witness testimonies supporting the applicant’s version were in fact based on her account. The investigation was terminated due to the lack of direct evidence.

The counsel appealed against this decision, because in his view “the fact that there is no direct evidence does not prove that discrimination had not occurred. Job interviews are usually conducted behind closed doors. Likewise, in the present case, the manager, his secretary and the applicant were present. Others could not hear their conversation, therefore it seems understandable that there are no direct witnesses.

There are, however, indirect pieces of evidence that come in a logical order supporting what was said by the applicant. Indirect evidence is admitted in all types of proceedings. Moreover, often only indirect evidence is available to support certain allegations.”

Why would the applicant make such allegations if they were not true? She has no reason to claim that a hotel manager she had not seen before had made remarks about her ethnic identity. Could she be taking vengeance for a previous injustice or enjoying the proceedings, which are cumbersome for her as well. Katalin F. has fairly precisely described the people she met and the reception where she waited. The hotel’s registry showed that the person she described was on duty at the reception.

Meanwhile, the minority commissioner had obtained a list of telephone calls going out from the applicant’s workplace. According to the list, on 17 April two telephone calls were made to the number given in the advertisement. The counsel submitted this list to the President of the National Labour Inspection, in charge of the procedure of second instance.

On 24 November 2000 the President upheld the first instance decision, however, providing reasons different from those of the first instance decision. In his view, the Inspection has no competence to deal with complaints relating to a situation in which the employee had not yet been contracted. “My competence is defined in Section 1 sub. 1-3 of Act No 75 of 1996, pursuant to which labour inspection may only deal with matters concerning employment. The employer complained that Katalin F. had not been employed. Thus, the labour inspection has no power to proceed in a case relating to an employee’s conduct contrary to the prohibition of discrimination as stipulated under Section 3 sub. 1 lin. d, of the Act.”

Section 5 of the Labour Code3# also prohibits discrimination and reverses the burden of proof. According to the Code on civil procedure, Section 5 shall be interpreted as covering job interviews or other acts that may lead to a contract of employment. Due to the lack of litigation in this regard, courts also lacks experience in labour cases where the burden of proof is reversed.

The counsel filed a labour suit based on Section 5, requesting the court to establish that Katalin F. had suffered discrimination and pursuant to Section 174 sub. 1 and Section 177 sub. 2 of the Labour Code order the employer to pay her 300.000 HUF in non-pecuniary damages.

The court has not yet tried the case.

1 Section 3 sub. 1 lin. d, of Act No. 75 of 1996 on labour inspection

2 Section 8 sub. 4.

3 The prohibition of discrimination in Section 5 of the Labour Code /Act No. 22 of 1992/ reads as follows: "(1) In connection with an employment relationship, no discrimination shall be practised against employees on the basis of gender, age, race, national origin, religion, political views or membership in employee interest representation organisations or activities connected therewith, as well as any other circumstances not related to employment. Any differentiation clearly and directly required by the character or nature of the work shall not be construed as discrimination."

Lajos B.

Following a complaint filed in May 2000, NEKI requested information from the mayor as to the criteria according to which Lajos B’s competitor had been chosen for the job. The mayor explained that the applicants’ social situation, “their local relations” and the seasonal use of the tractor were taken into consideration in the councillors’ final decision.

NEKI inquired from the Chief Traffic Inspection and the Police Station in E., whether or not a B-category driving license was suitable to drive an MTZ tractor. Both authorities invoked ministerial decree No. 48 of 1997 (VIII.26.) of the Minister of Interior, under which B-category driving licenses are suitable for driving tractors as long as they belong to the “slow machine category”. However, to drive a heavy trailer or any other trailers, a license of a different category is needed. Assuming that one acknowledges the B-category driver’s license as adequate for performing seasonal work with the tractor, two arguments questioning the reasons behind the councillors’ decision still remain. Out of the two applicants, they chose the one who did not have the specific license necessary to drive the tractor under all possible circumstances. On the other hand, as mentioned by the complainant, the tractor could also be used for other purposes for which there had been a demand from the villagers.

In September 2000 attorney Zsuzsanna Horváth, counsel for Lajos B. filed a lawsuit with the competent Labour Court requesting it to recognise that the councillors of H. village discriminated against the plaintiff in relation to his employment rights. The labour suit is based on Section 70/A of the Constitution1#, which provides for a general prohibition of discrimination under law. As previously elaborated by the Constitutional Court the fact that the prohibition of discrimination is a basic legal principle means that this prohibition is present in the whole legal system, i.e. its implementation shall be provided in full, "including rights that do not belong to human or basic civil rights".2# Consequently, the prohibition of discrimination shall also hold for labour relations, despite of specific provisions under the labour law, i.e. Section 5 of the Labour Code. Furthermore, it is apparent from the basic legal and absolute character of the prohibition of discrimination when a certain difference amounts to discrimination. A certain difference is contrary to the Constitution if "this difference in treatment or the restriction lacks reasonable ground based on an objective examination, i.e. it is arbitrary".#3 Taking all relevant circumstances into account, it is without doubt that the local government’s decision in the present case falls short of criteria laid down by the Constitutional Court, therefore it is unconstitutional. Pursuant to the ministerial reasons provided to the Labour Code, the prohibition of discrimination shall be applied in relation to the commencement of employment. This interpretation is further supported by Act No. 75 of 1996 on labour inspection, under which labour inspections have powers to control the proceedings of employers prior to the commencement of employment. Furthermore, the local government finally entered into a contract under labour law, thus it shall be defined as an employer. This argument is supported by Court Decision No. BH.1998.357, in which terms those employed by local governments are not civil or public servants, their contracts shall be judged according to the rules of the Labour Code. Consequently, the local government violated Section 5 of the Labour Code and shall be sued before a Labour Court.

The Court has not yet tried the case.

1 Section 70/A of the Constitution reads as follows:

2 Constitutional Court decision No. 61/1992. (XI.20.) AB határozat

3 Constitutional Court decision No. 35/1994. (II.8.) AB határozat

József O.

In September 2000 the boy’s tutor sought assistance from Katalin Pék, head of NEKI’s local office. Our colleague first contacted the head of the local polytechnic’s hairdresser shop. He informed her that they only trained girls. Ms. Pék then turned to the head tutor of practical subjects who promised to ask his acquaintances to help in finding a place for the boy. His efforts did not bring success either.

Meanwhile, the number of lessons missed by the boy was growing without any hope for a placement. He was ready and able – from his money set aside from family allowance - to pay for a placement. Ms. Pék repeatedly asked the local Chamber of Commerce and Industry for help. On 22 November 2000 she initiated a meeting where colleagues from NEKI and concerned professionals would discuss recommendations to resolve or rather, prevent similar situations from reoccurring.

The meeting will be held on 18 December 2000 with the participation of the headmaster of the polytechnic, the head of the foster home, the representative of the local Chamber of Commerce and Industry, and of colleagues from NEKI. At present, however, the boy’s problem remains unsolved as no hairdresser is willing to train or employ him.

Squatters of 25 Király Street#1

NEKI first met the families in December 1999. We learnt that the local government had intended to launch mass evictions, which could have resulted in approximately 70-80 people – among them children – becoming homeless overnight. We surveyed the situation of 17-18 families with a detailed questionnaire. All families were of Roma origin. We asked them where they had originally come from, why they were squatters, how many people had a job in a family, whether or not the children went to school or kindergarten. We also inquired about the number of permanently sick people in each family, their access to social benefits, their savings or other financial resources, which would enable them to change the situation. Lastly, we asked them about their relationship with organisations that can be of help to them and about steps they had taken in regards to the local government.

Regardless of minor changes following December 1999, the community of the squatters in 25 Király Street could be characterised as follows.#2

There were 72 adults and 37 children – all under 18 – in the 17 families we contacted. Eight children went to school, whereas 5 children went to kindergarten in the 7th District. 14 families out of the 17 had children. Nine children went to school, whereas two went to kindergarten in the 4th District. One was registered in the countryside, another one in a school situated in the 8th District. We found six children who were three years or younger. Two had already stopped going to school but were still under 18. Six women were on maternity leave or worked as full-time mothers. Ten people claimed they regularly performed daily work without paying taxes. Six people received pension for the disabled, were sick or could not work for any other reason. At least one member in 11 families had been born or had lived in Budapest for longer than ten years. Five families had arrived in Budapest 2-5 years prior to the given period, whereas one had moved here less than a year before the questionnaire had been completed. 55% had come from Szabolcs-Szatmár and 25% had arrived from Borsod-Abaúj-Zemplén County. Only two families owned a house or flat at the time – or at any other time – both in Szabolcs-Szatmár County. The first house had been unsuitable for living due to subsoil water and the local government there had not provided assistance for the renovation. The second family had left because of the father’s long-lasting illness. During his illness the family had taken out mortgage on the house, which they found impossible to pay, as there was no work in the neighbourhood. They could not sell the house either, because of the mortgage. They left for Budapest. The mother and two of her adult daughters have been working officially since then. We found a single mother who used to own half a house in the countryside. Following her divorce, she and her former husband sold it but the money she received was not enough to pay for any kind of housing. A number of people had already been a squatter at one point in their lives, some had been roaming for years. They carried on requesting the competent local government to provide them with housing, to no avail. As well-known from typical homeless stories, several people had started out at workers’ dorms, and when these facilities had been shut down, moved to relatives or acquaintances or rented a place. With no state assistance forthcoming, their relationships and financial situation deteriorating, they found themselves on the streets.

Prior to squatting, each family has at one point tried to request the assistance of local governments in solving their housing problems. Some had their files full of letters and decisions denying help. The majority of the people were newly-weds who first started their life together at their parents’ place. As their children were born, the coexistence of different generations had become unbearable. They moved but could not provide for rent. It was a general concern that being unable to afford the rent was not the only factor why these families could not stay in rented flats. All recounted that owners are unwilling to rent their property to Gypsies, let alone Gypsy families with children. The fact that their marriage was racially mixed had made the life of B. V. and E. V., a young couple with children, difficult. Their families could not come to terms with their marriage, therefore following the wedding they were scorned by both. Although both had jobs, without support from their families and without financial support, they were unable to solve their housing problems. Another couple – both under 30 – had lived in more than eight flats over the past years. The stepmother of the wife drove them away. The husband was raised in foster care, without any contact with his relatives. They were both skilled workers and worked regularly. Three families had moved from the 4th District. They had rented a house there for years. They are officially registered in the 4th District and their children still go to school there. They had always paid the rent and never had problems with the owner. In the spring of 1999 he, however, decided to sell the house. The new owner ceased the contracts and demolished the building. Mrs. S. H. found herself and her five children on the street. Following days spent on the streets, she squatted in a flat found empty in the 4th District. The local government found out about her in a week and evicted the family. She repeatedly requested that the family be provided with housing out of equity, to no avail. She found the flat in 25 Király Street after she had roamed the streets of a number of districts in the capital. She recounted how she had seen a number of vacant flats in several districts. She decided to move into Király Street because the flat was in such an abandoned state that she felt she would not have to worry about officials looking after it.

From the time the families had moved in, they constantly renovated the flats. They had the windows and doors repaired, they cleaned and painted their homes. In many of the flats, the squatters had hot and cold running water as well as electricity installed. A number of families had toilets and bathrooms built, some even had the telephone installed. Every family cared about their home. They kept repairing and renovating them. They recounted how they had contacted public utility companies and requested to be billed. They, however, had been told that the local government’s permission as owners had been needed for this. They then turned to the local government and were refused as people illegally occupying the flats. Each family offered to rent the flats from the local government but was discouraged by commandos on two occasions Only months later did the local government refuse the offers to rent the flats.

NEKI grappled with the issue of whether or not the families were victims of ethnic discrimination, i.e. could we accept this case. To us, the heart of the question laid in witnessing the extremely high proportion of Roma amongst squatters. We have long believed that discrimination takes on many different forms, including historical discrimination. Historical discrimination is the consequence of disadvantages accumulated over time, or prejudices resulting from previous discriminatory laws, official measures, or individual's discriminatory – although then lawful – acts. Despite the equality ensured by law to protected classes, historical discrimination still has a negative impact in the present. Few would doubt that following the political changeover, it has been Roma whose situation has deteriorated to the greatest degree. As a result of being under-educated, lacking appropriate professional skills and due to social stereotypes, they start out with a disadvantage on the labour market which prevents them from catching up with the majority society. Research has shown that a great number of Roma had come to Budapest to work in the construction industry and live in workers’ dorms. Parallel with the economic recession’s impact on the construction industry, these people had become unemployed and homeless. As the regions they come from have been severely hit by unemployment, they have stayed in the capital to try their luck here, to at least undertake a day job. The remains of the social welfare system that helps young couples to provide for their first housing, i.e. social policy loans, preferential housing loans, are regulated in a manner that is of assistance to those who have already accumulated savings. In addition, they must be willing to require state benefits to obtain housing in the most expensive way, i.e. to buy or build a new one. The present system is therefore not much help to disadvantaged groups, including Roma. Disparate impact is another form of discrimination. This is a phenomenon arising from the fact, that due to disadvantages accumulated over time, even seemingly neutral laws, measures, or requirements may have the potential for having a disparate impact on protected classes, i.e. they may deteriorate the protected class’ situation or impose a greater burden on it. Consequently, one must realise that, although the present case is not one of direct discrimination, it is not due to pure coincidence that all members of the 17 families concerned – or the majority of squatters in general – are Roma. Their situation has resulted from different types of discrimination.

Having clarified concerns relating to discrimination in the present case, NEKI had to define its legal strategy, bearing in mind that our clients were not only victims of discrimination but also violators of effective legal provisions. The greatest obstacle to be overcome was the fact that these legal provisions left little room for any legal strategy to be applied. First, we called on the local government to adhere to the law, which did not allow for the harassment of squatters by commando. Squatters could be evicted as long as the local government had obtained an enforceable court decision in this regard. We commissioned attorney István Szikinger to represent the clients in case the local government would mount any legal action. Given, that by then the media had drawn public attention to the issue of squatters, also, that Róbert Juharos, an MP of FIDESZ had proposed legislative change in the matter, NEKI resolved to bring test cases before the courts. We aimed at representing on equal terms with those of the local government’s the rights of squatters to human dignity, to social security, and the right of their children to be brought up in a family. We interviewed the families about the way they obtained their illegal accommodations and submitted these interviews to the court.

Beyond the social aspects of the present and similar cases, a much-debated legal problem of utter relevance has crystallised, i.e. the legal regulation of squatting. It can be characterised by two statements: it is extremely formalised and strict. Sanctions imposed on squatters exclude any kind of equity and exception. On the other hand, notwithstanding the already harsh consequences, the regulations seem to become even stricter. Thus, it seems more appropriate to critique these regulations, rather than provide their simple description. Naturally, one perceiving the case in its complexity may find our arguments inadmissible. However, as they relate less to the very case as to our endeavour to set standards3# along which the compatible exercising of future regulations might be carried out, also, due to the legal, rather than the social nature of our arguments, we might be excused.

Relevant legal provisions may be divided into two groups, that of provisions of a more administrative nature and that of a more implementation or civil law-oriented nature. The former includes the relevant provisions of the Code on petty offences and the modification in 2000 of the Code on the rent of flats and premises. This allows for eviction as ordered by the notary. The latter group includes provisions such as Section 183 of the Code on the implementation of civil law judgements and decisions. In the following we will look into these regulations, with the role of law as our main guideline, according to which it is a normative response to social issues needing regulation. We shall also examine whether the law is an appropriate means of regulation for the issue before us.

Until the latest modification it had been the courts, which decided in eviction cases. Under Section 183 of Act 53 of 1994 on the implementation of civil law judgements and decisions, the court decides without trial. An appeal against its decision does not suspend said decision. The bailiff may request the head of the competent police forces to provide assistance for the eviction. This provision does not allow for equity or exceptions. Once the illegality of the individual’s occupation of the flat is established, the court will order eviction. Even if the defendant requests for the delay of the eviction, it is usually not granted. The owner may, of course, ask for the delay, but it is easy to comprehend why s/he would not. However, if the flat is owned by a local government, which, on the other hand, is under the obligation to provide temporary housing to those evicted, expecting a motion from it is far from being naïve.

NEKI participated in the court proceedings, which were conducted according to the modified rules of procedure, i.e. without trial. Nor jurisprudence, neither case law provides a unified approach as to how these proceedings should be conducted. Government decree No. 105 of 1952 MT rendelet does not contain specific regulations for eviction cases. Under Section 13 sub. 3 if relevant legal regulations do not provide otherwise, or it is not inherent in the nature of the proceedings, the rules of the Code on civil procedure shall apply to proceedings without trial. Pursuant to this regulation and to case No. Fô#városi Bíróság 42. Pkf.23.383/1996/24# decided by the Budapest City Court, the provisions regulating civil proceedings shall equally apply in eviction cases. Thus, as stipulated under Section 3 sub. 1 of the Code on civil procedure, it is the court’s duty to strive and establish the truth. It then follows that courts are under the obligation to hear the defendants in person.

The counsel did not argue that the defendant’s occupation of the council flats was legal. He, however, requested the court to delay the eviction until the local government proved that it can and is willing to fulfil its obligation to provide temporary housing to the defendants. The defendants’ claim invoked Section 70/E sub. 1 of the Constitution, under which "Citizens of the Republic of Hungary have the right to social security; they are entitled to the support required to live in old age, and in the case of sickness, disability, being widowed or orphaned and in the case of unemployment through no fault of their own." Two aspects relating to the fundamental right to social security shall be emphasised, i.e. that contrary to sub. 2 of Section 70/E and to arguments put forward by the Constitutional Court this right is meaningless in the sense that the system relating to it is far from being adequate. It cannot, therefore, ensure the right to social security, which, in our viewpoint, shall not – contrary to the strict textual interpretation – be interpreted as narrowly as relating solely to the existing system. On the other hand, one of the Constitutional Court’s latest decisions found that the independent elements of the right to social security do not exist. Thus, rightly – from a positivist approach – observing its limits, the court refrained from delegating duties and obligations to the state. It shall, however be noted that the interpretation of the Constitution in abstracto would not per se lead to establishing new state obligations corresponding to the elements of certain constitutional rights as this exercise would not be tantamount to legislation. It shall further be noted that the Court seemingly considered the right to housing as being interchangeable with the right of access to a flat or house.

Furthermore, the claim relied on provisions that imposed certain obligations on the local government. Under Section 7 sub. 1 of Act No. 3 of 1993 on social administration, regardless of their competence, local governments are obliged to provide temporary social support, food and housing to those whose life or physical integrity would otherwise be jeopardised. Under Section 7 sub. 1 of Act No. 3 of 1997 on child protection, the child may be separated from his/her parents or other relatives as long as it is in his/her interest and the procedure is in conformity with relevant legal regulations. Due solely to financial reasons, the child may not be separated from his/her family.

The claim also invoked relevant provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and those of the European Social Charter.#5

The court, however, found the claim inadmissible, arguing that according to Section 183 of the Code on the implementation of civil law judgements and decisions, it could not decide on an equitable basis as requested in the claim. Courts must certainly refrain from making decisions contrary to legal regulations or without an express power delegated to them by law.#6

Despite of criticism proceedings before courts seem adequate in eviction cases. The procedural rights of defendants are ensured by hearings in person, regardless of whether or not defendants are represented by a legal counsel. It is of great concern that Act No. 61 of 2000 adopted at the peak of the eviction scandal, modified to their detriment two relevant laws. The modification of the Code on the implementation of civil judgements and decisions has introduced a deadline of 30 days for deciding eviction claims and has made it the obligation of independent courts to order eviction if circumstances require so. Provisions of Act No. 78 of 1993 have been changed to give way to notaries to proceed in eviction cases and bring enforceable decisions. Notwithstanding stringent modifications, the escalation of the situation will probably decrease equity and the requirement to examine the obligations of the local government in the proceedings.

Court proceedings no doubt comply with the requirements of the rule of law, although ordering evictions in the present situation – when following a short examination of the case, families are practically left on the streets – does not fully serve the public interest. Unless legislation deems it appropriate to react and adopts modifications in this regard, the injurious situation will remain. Proceedings by notaries, however, are far from being in compliance with requirements set by the public interest and procedural guarantees. These give way to the imposition of severe sanctions in summary proceedings, without providing effective remedies. Squatters can be evicted before their right to appeal opens up. The public interest has thus, in our view, already been violated.

The tribulations of the families are not over yet. In July 2000 they all had to leave the flats. As a result of concerted media attention and interventions from NGOs, sociologists and prominent public figures, the families were not evicted before the local government complied with its obligation and found temporary accommodation for them. We are aware that many have been called upon to leave their temporary accommodation before the end of the year, as the temporary deadline is over.

Finding the families as squatters in another district of Budapest should not come as a surprise to any of us.

1 This case has received enormous media attention, therefore – unlike in other cases reported by NEKI- we do not see reasons for withholding personal data.

2 18 families lived in the back courtyard at the time. We were in contact with and later represented 17 families.

3 E. g. significant social interest.

4 The decision states that unified procedural rules exist. We, however, found that practice in relation to personal hearings differed to a great extent.

5 Most of the relevant international documents acknowledge the right to housing and many papers call on states to adhere to their obligation to provide for this right.

6 In one case the court obliged the local government to decide on the defendant’s equity claim. This, however, did not have an impact on the overall outcome of the case.

The B. family

An old couple had been selling the plot for over a year then. They recounted how they had offered the plot to the neighbours who did not wish to buy it. One neighbour even brought a possible buyer along, but the plot was not bought. The Bs also lived in the neighbourhood and heard about the plot. After the neighbours had learnt about the Bs’ plan, they decided to prevent them by all means from building a house there. They first harassed the vendors for selling the plot to Roma. After they had received the first instance decision of the construction department permitting the families to start construction works, they appealed against it alleging that they had previously wanted to buy the plot for which they had pre-emption.

On 29 May 2000, two months after the appeal, the second instance authority rejected the appeal and permitted construction to start, arguing that no pre-emption had been registered in the Land Office for the neighbours. Although the second instance decision is enforceable, its judicial review based on the violation of procedural rules may be initiated before the County Court within 30 days.

On 28 July 2000 the neighbours, E. A. and his wife, filed a request for judicial review with a view to throwing out the enforceable administrative decision. They asserted, that “the building as planned may not provide adequate housing to a family of this size.” Other neighbours shared this view, six of them even joined in the court proceedings while another 137 people living in the neighbourhood signed a petition later attached to the request. The neighbours and those living in the neighbourhood provided all their personal data to a petition, which had the express intention to prevent two Roma families from building and moving into a house on their own land.#1 Meanwhile, the families found shelter with their relatives and could not start construction works because of the neighbours.

In July 2000, the families – assisted by the local minority self-government– requested help from NEKI. On 6 September 2000 attorney Imre Furmann requested the County Court to allow for his intervention in the proceedings or, alternatively, reject the original claim for judicial review.#2

On 19 September 2000 we requested information from the local government’s competent department as to whether or not there had been an obstacle preventing the Bs’ from obtaining the permission and launch the construction. According to the local government, although the permission had been enforceable, the plans necessary to launch the construction could only be issued after court proceedings would be over. On 12 October 2000 the County Office of Public Administration declared the decision permitting construction on the Bs’ land lawful. The administrative proceedings had been lawful and the plan met all legal requirements. The way the house would be situated and built was not contrary to local regulations. The Office did not object to the Bs’ intervention in the court proceedings.

The same day the County Court allowed the Bs’ intervention in the proceedings.

On 30 October 2000 the Court rejected the claim as being unsubstantiated. The judgement could not be appealed. After the court had orally delivered its judgement the representative of the construction department undertook to provide the Bs with the necessary permissions, which would allow for the preparatory work to start. When, however, the family wished to obtain the documents as promised they were told that they should hold on until the written judgement arrives. The court posted the judgement on 23 November.

The Bs could have started the construction on 4 December if weather would have so allowed. Ten months have elapsed since they had bought the plot. They could have built the house in the meantime.

1 It was later established in a TV program that some parents added the data and signature of their children to the petition to make the number of petitioners appear much higher. The neighbours never hid their intentions.

2 Pursuant to Section 54 and 47, 49(1) and 327(1) of the Code on civil procedure.

District self-government

NEKI launched an examination into the case after being contacted by squatters living in the building.1# The smaller building was derelict at the time the contract was signed, while approximately 100 families lived in the bigger, run-down one. Some of the inhabitants were legal tenants, others squatters. The latter moved to Budapest 8-10 years ago, hoping to find a job and earn a better living. At that time the building had been derelict and everybody started out as a squatter in it. The local government tolerated squatters but required them to pay rent, although not having concluded rental contracts with them, it could only require them to pay a usage fee. Squatters regularly paid rent and utility fees. The majority managed over the years to sign rental contracts with the local government, the rest remained as illegal tenants.

According to the contract the company had signed with the local government, the former undertook to provide all tenants with accommodation and ensure that those moving out would not demand housing from the latter. It seems that the local government did not in fact solve the housing problems of its tenants. It handed over its obligation to provide housing for the tenants to the company and even required the company to obtain a declaration from each tenant in which they would waive their right to make any demands with regards to housing. The tenants claim that the local government did not follow up on the company’s obligations towards them. It appears as if the local government had left its tenants at the mercy of the company’s offers, the majority of which agreed on a cash payment instead of being provided with housing.

The company has so far settled with 60 families, whereas 40 are still awaiting its offer. The settlements have been concluded in a rather peculiar manner. The company’s representative met the families in the building and offered low amounts of cash in exchange for their flats. Being in a vulnerable position, most of the families agreed on the terms and moved out.

Under Section 80 sub. 1 of Act No. 65 of 1990 on local governments, the latter have all rights and obligations that owners have. It is the local councillors’ task to give instructions related to these rights.

Under Section 49 sub. 1. Of Act No. 78 of 1993 on the renting of flats and premises, the tenants of council flats have pre-emption to purchase the flat they rent. Thus, prior to selling the building the local government should have informed the tenants about its intentions. The tenants claim that they learnt about the contract only after it had been signed.

In June 2000 the company’s legal representative called on the originally illegal tenants to move out of their flats within 20 days from receiving his notice, otherwise the company would initiate proceedings against them. The notice referred to the latest modification of Act No. 78 of 1993 in effect since 20 July 2000 and informed the illegal tenants that based on the notary’s decision, they would be evicted within 60 days.#2

The tenants did not comply with the notice, thus the company turned to the notary. The latter refused to bring a formal decision in the case, because in his viewpoint the company had an obligation to provide housing to all tenants, regardless of their legal status. Hence, squatters may also remain in the building until June 2001, the deadline for the company to provide housing for them.

At present the tenants live in the same building, awaiting the company’s offer. NEKI will closely monitor the negotiations between the company and the tenants and is determined to represent the tenants’ interests in the proceedings.

1 See the case of the squatters of 25 Király Street for an explanation of why NEKI took the case.

2 See Section 90/A. For a critique of the modification, see the case of the squatters of 25 Király Street.

T. town

I.

In 2000 the president of the local Roma minority self-government sought help from the minority commissioner, following which the commissioner and NEKI co-operated in examining the case.

A.

According to Section 44/A sub. 2 of the Constitution, local councillors may adopt decrees in their sphere of tasks and duties. However, these decrees may not be contrary to superior legal norms. The Constitutional Court explained this provision in its decision No. 17/1998 (V.13.) AB határozat as follows. The councillors have the right to adopt decrees that complement and are in conformity with national regulations. In decision No. 46/1998 (XI.13.) AB. határozat the Court argued that an inferior legal norm, which provides a more lenient sanction than a superior norm, violates the security of law. Consequently, the local decree is contrary to the principle of the security of law as stipulated in Section 2 sub. 1 of the Constitution.

B.

C.

The local decree is contrary to Section 70/A of the Constitution as it discriminates on the grounds of financial status and ethnic origin. The given provision is obviously directed against people, whose financial situation compels them to gather and re-sell garbage, thereby earning their living. The councillors must have been aware that the prohibition was only seemingly blank, in practice it threatened certain social groups. Moreover, the councillors must have well known that the majority of the groups concerned were Roma. One may then conclude that the rationale behind the local decree was to keep garbage pickers from coming in to T. from the neighbouring villages.

II.

The minority commissioner made queries with the mayor, the councillors, the Office of Public Administration and the County Prosecutor. The commissioner recommended that the councillors modify the local decree and terminate proceedings pending against offenders of the incriminated provision. He also recommended the notary not to proceed on count of the given petty offence. The councillors disagreed with the commissioner and refrained from the modification of the local decree.

The Office of Public Administration reviewed the legality of petty offence proceedings and found them well founded and lawful. The County Prosecutor also reviewed the legality of petty offence proceedings and established that between I January and 13 June 1999 the local petty offence authority unlawfully commuted fines to petty offence detention. The Town Prosecutor issued an official warning to the competent authority. The County Prosecutor, however, did not examine the legality of the local decree as pursuant to Section 13/a sub. 1 of Act No. 5 of 1972 and to the practice established in this respect, the prosecutor refers cases relating to the legality of local norms to the Office of Public Administration, practising his powers only if the query remains unsolved. Based on the findings of the investigation conducted by the Ministry of Interior, the Office did not find the decree unlawful.

Finally, the Attorney General reviewed the County Prosecutor’s standpoint and found that the local decree was in many aspects contrary to the Constitution and relevant laws. He then filed a constitutional complaint. According to the Attorney General, the prohibition of “just carrying litter away” violates Section 44/A of the Constitution relating to legislation. The minority commissioner and NEKI, however, assert that the local decree indirectly discriminates against Roma.

III.

NEKI filed a constitutional complaint on behalf of three Roma, requesting the Constitutional Court to retrospectively declare the decree null and void as it concerns a greater number of people and has not ceased to have an impact on these people. In 1999, based on the incriminated provision, 273 proceedings were conducted in the county added to those investigated by the notary of T. These proceedings violated the rights of the individuals concerned. Furthermore, we requested the Constitutional Court to throw out the decisions that were based on the given provision of the local decree. The competent petty offence authority proceeded in several hundred cases over the years, imposing fines on mainly Roma garbage pickers who, due to their living conditions, could not pay these fines. Those individuals, whose fines had been commuted to detention, might have spent up to 50 days in prison.

On 31 December 1998 the Constitutional Court threw out Section 18 and 71/A of the Petty Offences Act. From 1 January until 13 July 1999, therefore, unpaid fines could not be commuted to petty offence detention. The petty offence authority of T. did not comply with the modifications resulting from the Constitutional Court decision. Luckily, the unlawful decisions could not be implemented. As a result of the Town Prosecutor’s official warning the competent authority corrected its decisions.

NEKI’s three clients found themselves in an awkward position. The family living along the railways in plastic tents had for years earned their living from gathering rubbish. For years they have been hiding from the police and avoiding paying fines imposed on them. Prior to 1 January 1999, a number of proceedings had been initiated against them and became enforceable before the Constitutional Court’s decision took effect. The decisions, however, were only implemented in the spring of 1999, when, in principal, no person could have been detained after having failed to pay the fine. Thus, in the spring of 1999 the old Mr. I. spent 100 days in detention.

Civil proceedings for damages caused in an official capacity, i.e. by proceeding and detaining people on the basis of the unconstitutional local decree, may be launched against the local government as long as the Constitutional Court finds the decree unconstitutional and retrospectively declares it null and void. The Court, however, may need years to deliver its decision in the case.

In its decision of 14 March 2000 the competent state guardian authority ordered the boy to be taken into temporary state care. The state guardian authority established that its decision would be urgently reviewed following the change of the parents’ residence. According to the decision, the parents also requested their child to be taken into state care and had promised to leave their place of residence. The parents claimed that they had never made requests or promises of said content. The state guardian authority’s decision of 12 April 2000 seemed to support the allegation, as it cancelled the boy’s state care. They found that “the child behaved in an exemplary manner and maintained close contact with his parents with personal meetings every day. No doubt, the family is able to ensure his appropriate care and education.” The latter statement seems peculiar in the light of Section 77 sub. 1 of Act No. 31 of 1997 on child protection, as under this provision initially the boy could have only been taken into state care as long as his parents would not have been able to ensure adequate care for him. It, however, seems that public sentiments served as a reason behind the official measures taken in the case. The duration of state care further supports this assumption. Less than a month could not be enough to allow for changes to take place in the family, given these were indeed necessary. It must have been the school incident, which urged the authorities to take the boy away from his social surroundings. This might have served the child’s interests, however, what he really needed was protection of his bodily health as opposed to protection from his family. Taking the boy in state care might not have been the most adequate means to achieve the former. In our experiences threatening families with such state measures serves more as a tool to show them an example or make them accept or put up with a certain action.

Parallel to the above proceedings, the parents filed an official report with the Town Police Station, claiming that they had been threatened on numerous occasions, a car had driven into their courtyard and once an object similar to a smoke-bomb had been thrown into their house. The Town Police launched an investigation into the case and later referred the case to the County Police who were proceeding on count of violence against a member of an ethnic minority. The investigation was terminated on 14 June 2000.

The investigation against the boy had also been terminated since children under 14 do not have criminal liability in Hungary.

1 See also White Booklet 1997, p. 70.

F. village II.

NEKI’s colleague inspected M. R’s house and found it derelict but far from being dangerous for habitation. The client said that since they had been back, they had tried to rent a flat in several neighbouring villages. They found a flat in M. and lived there for some time. Moreover, they had a mortgage on their house, which they had not paid prior to their return. Following their arrival, however, they negotiated with the National Savings Bank and obtained a promise according to which they could start to pay the instalments in delay. On 3 August 2000 the house was put up for auction, but was not purchased.

NEKI identified two realms of problems related to the client’s complaints. As for official registration in the village: under Section 58 of the Constitution every citizen has the right to free movement and to the freedom to choose their residence in Hungary. Consequently, every citizen shall be registered at his/her place of residence, given that relevant legal requirements are fulfilled. Under Section 26 of Act No. 66 of 1992 on the registration of residence, citizens are obliged to register with the competent authority. Thus a request for registration may not be rejected as long as the address to be registered is real and the applicant has a legal right to stay at the given address.#1

In reference to a since then non-effective ministerial decree related to the registration of residence, the Constitutional Court found that in general “the basis of registration is the purpose of one’s stay at a given location and not the nature or the technical state of the premises”.#2 Consequently, legal provisions and other circumstances did not prevent M. R. from registering at his house. He could have even moved in. Moreover, this address could not have been defined as fictitious in terms of Section 35 sub. 3.

As to the state of the house: the notary obliged the client to obtain within 30 days an expert opinion in this regard. The notary stated that on 21 May 1999 he inspected the house and found that the walls of the building were not stable enough and further deterioration may pose a threat to human life and public security. The notary informed the client that he would impose a fine up to 100.000 HUF if he failed to adhere to the deadline set for the expert opinion.

The client and his family were living abroad at the time the decision had been passed, therefore it had not been received before 13 July 2000. Under Section 54 sub. 2 of Act No. 78 of 1997 on the protection and construction of buildings, owners are under the obligation to have the state of their property reviewed and the necessary works completed. Our client, however, could not comply with this obligation at the time the decision had been delivered.

Under Section 11 of ministerial decree No. 40 of 1997 (XII.21.) KTM rendelet, certain obligations shall be fulfilled with the assistance of state authorities, e.g. if the person obliged is residing abroad or his/her place of residence is unknown, there is no person suitable to represent him/her, and the obligation is to be urgently fulfilled, the construction department may have the work done on the obliged person’s account. Therefore, in the given case it should have been the local government’s duty to have the necessary construction work done on the client’s expense. Furthermore, the notary should have been aware that the client was not in the position to have the expert opinion completed. The local government, however, did not take steps to have the construction work completed. They left the allegedly dangerous building in this state for more than a year.

NEKI commissioned a construction expert to clarify whether the house was indeed in a state in which it endangered its inhabitants. According to the expert opinion of August 2000, the house was not in a state unsuitable for human habitation. The house had not been properly renovated and had been abandoned for years. It had been constructed in accordance with the legal and technical requirements.

We sent the expert opinion to the notary and requested the local government to assist the family in solving their housing problems, whilst advising the family to settle with the Bank and start renovating their property. We advised the family against moving straight back because as we understood, the local government was toying with the idea of taking the children into state care.

In September 2000, M. R. called NEKI to inform us about their return to Germany.

1 Government decree No. 146 of 1993 (X.26.) Kormányrendelet.

2 Constitutional Court decision No. 12/1992 (III.25.) AB határozat.

K. village

In June 2000 the local minority self-government complained to NEKI about the system of vouchers and the fact that the newly introduced practice had a disproportionate impact on local Roma. They claimed that contrary to the provisions of the Act on administrative procedure the local government modified the practice without passing a resolution in this regard. Ever since the vouchers had been introduced, the minority self-government has successfully intervened to allow for their use in shops selling clothes. However, monthly vouchers might only be used to buy either food or clothes. Moreover, vouchers must be used in one shop a month but only a handful of shops allowed for the vouchers to be partially spent. According to the warning written on the vouchers, they may only be used to buy groceries suitable for direct consumption. In practice, however, grocery stores also sell cigarettes and alcohol in exchange for vouchers. The results of NEKI’s research mission supported the above description related to the use of vouchers.

The introduction of vouchers has brought a new custom in the village: traders gave loans to their customers – amongst them individuals using vouchers – which the local government deducted from next month’s vouchers. The traders called in to inform the local government about the debts and the mayor’s wife – a shop owner herself – helped with counting how much shall be deducted from the vouchers. Three types of loans exist: (i) the debt is deducted from the voucher by the local government; (ii) vouchers are provided in their full amount to the client who pays his debt to the merchant on the spot; (iii) the debt is added in the shop to the amount payable by vouchers.

Under Section 8 of the local decree, regular child protection support may be given in kind if, inter alia, it may reasonably be assumed that the person caring for the child would not spend the support on the child. Thus, vouchers may only be given in exceptional circumstances. Support in kind can be provided with vouchers for food or clothes.

The practice seems to contradict the decree as according to the allegations made by local Roma, regular child protection support is given in kind only. The fact that merchants sell anything for vouchers and deduct previous debts from vouchers is a further area of concern. The vouchers do not seem to have solved the protection of the children in need. Furthermore, the voucher system violates the right of clients to human dignity as stipulated under Section 54 sub.1 of the Constitution, as it presupposes that they would fail to spend the support on their children.

The debt recovery system is another area of concern. Child protection support is a type of social allowance, provided by the local councillors to those in need, whereas loans are provided on the basis of a civil law contract. Administrative acts and conducts based on civil law contracts should be separated, thus debts should not be paid back within the premises of the local government with assistance from the mayor’s wife. The system is certainly comfortable for the traders, who always regain their loans in due time.

In our view, providing regular child protection support in the form of vouchers is contrary to relevant legal provisions. Under Section 18 sub. 1 of the Act on child protection the local government provides regular and irregular child protection support to those entitled to it. Regular child protection support is a monetary social allowance. Thus, it should be provided in cash instead of vouchers or any other kind of support. Under Section 28 sub. 2, however, regular support can be provided in kind, particularly by providing support for schoolbooks, for meals, tuition fees and for health service fees. By using the expression ëparticularly’ the legislator presumes that support in kind can take many other forms as well. At the same time, in terms of the Act’s interpretative provisions, this type of support is a certain monetary assistance or service through the provision of which the state (local government) helps the child in satisfying his/her basic needs. Do vouchers amount to support given in kind, for in the given case vouchers only substitute the amount of cash that should be provided?

On 17 October 2000, NEKI requested the Office of Public Administration to review the legality of the local practice of providing regular child protection support in the form of vouchers. According to its information given on 15 November, the Office’s State Guardian Department supported our standpoint. However, it remains to be answered how our request addressed to the head of the Office made its way to this department first.

Furthermore, on 21 November 2000 we requested the parliamentary commissioner for civil rights to “examine whether the local government’s practice is in compliance with the constitutional principle of legal security, the constitutional right of children to social security, and whether it is in compliance with other legal norms”. We requested the commissioner to initiate, if necessary, further legislation with a view to prevent similar problems from occurring.

Discotheque in D.

In December 1998 the minority self-government sought assistance from the mayor as well. In a letter dated 13 January 1999 the mayor informed the applicants that in the local councillors’ view they could not take a stance, nor take any measures, as under the Act on local governments they lacked competence in the case.

The entrepreneur appealed against the consumer inspection’s decision, but on 13 February 1999 the authority of second instance rejected her appeal.

On 29 February 2000 the president of the minority self-government again complained about a similar treatment of Roma youth in the discotheque. The situation had somewhat altered since 1998, as it was a number of local policemen who by then guarded the premises. NEKI called the consumer inspection, where we were told that officially it was not A. V. who operated the establishment. An association had been formed in the meantime and took responsibility for the discotheque. Consequently, only those possessing membership cards could enter the premises. This also meant that the consumer inspection had no competence in the case.

The association had been registered on 16 September 1999. According to the Rules of Governance, A. V. had been elected as the president of the association. “The Club is founded by those wishing to have fun, who are of a similar social position and strive to create a unified public ethos. The Club aims to bring spiritual values to the forefront, eliminate alienation, reach with the assistance of members a higher social and business level, and to co-operate in order to create a unified public ethos”.

On 1 April 2000 D. M. and D. B. Roma and B. B. non-Roma volunteers travelled to the village. At the president’s flat they met several Roma youth, who reiterated the claims of discrimination. They recounted that every time they attempted to pay the entrance fee, they were sent away because they were not members. They inquired about how to obtain membership cards. They were told that two members’ recommendation was needed to acquire the card. Sometimes, they were told to submit a CV on the basis of which their application would be evaluated. At other times, they were asked to pay a certain amount of cash in order to become members. Local Roma also supported allegations relating to policemen working in the establishment as security guards.

At 20:30 two non-Roma volunteers left for the discotheque. They later recounted that they purchased two tickets at the entrance without any trouble and went inside. They ordered beverages and sat down at a table. Twenty minutes later an employee went up to them to ask whether they had membership cards. He then issued the cards to them and registered their names and addresses in a book. Meanwhile – without being asked – the employee told the non-Roma volunteers, that “the cards are necessary because it is the only way to prevent Roma from entering. Previously we had problems with the consumer inspection and the parliamentary commissioner.”

Thirty minutes later B. B., Roma volunteer and P. M., a local Roma youth also set out for the discotheque. They also wanted to buy two tickets at the door but were refused, as they did not have membership cards. They then asked how they could obtain the cards and were told to present a CV and recommendations from two members. B. B. then asked for the book of customers. He was told that it was not a discotheque but a club, therefore they did not have such a book. Fifteen minutes later three local Roma youths tried to get in, with no luck. Following their return, all volunteers filled out a detailed questionnaire and identified two local policemen whom they claimed were guarding the discotheque.

On 10 April 2000, pursuant to Section 13 sub. 2 lin. f, of the Act on prosecution, to Section 5 of Act No. 1 of 1977, Section 14 sub. 1 of Act No. 2 of 1989 on associations, and to Section 12 of order of the Attorney General No. 13/1994 (ÜK.12.) LÜ utasítás, NEKI submitted a complaint of legality to the County Prosecutor.1 The complaint gave a detailed account of the testing and drew attention to the fact that according to its Rules of Governance, the association performed the following activities: hotel service, youth tourist accommodation, camping, additional hotel trade, restaurant and pastry shop services. Thus, the association did in fact operate as the legal heir of the discotheque previously operated by A. V. under the same name. Under Section 2 sub. 2 of Act No. 2 of 1989 the exercise of the right to association may not be in violation of Section 2 sub. 3 of the Constitution, it may not result in the infringement of the rights and freedoms of others. According to sub. 3, a non-governmental organisation may be established to carry out activities that are in compliance with the Constitution and are not prohibited by an act of law. However, NGO’s may not be created with the primary aim to perform an entrepreneurial activity. In terms of Supreme Court guideline KK.1. and relevant case law, NGO’s violating this rule are not registered by the court.

Moreover, the association’s practice, i.e. that it does not allow Roma to take part in its public programmes, is contrary to Article 2 of the International Covenant on Civil and Political Rights, Article 14 of the European Convention on Human Rights and Fundamental Freedoms, and to Article 2(1) of the Convention on the Elimination of All Forms of Racial Discrimination. The practice is also in violation of domestic law, i.e. of Section 70/A sub. 1 of the Constitution and Section 76 of the Civil Code, according to which violation of civil rights is explicitly defined as any form of discrimination against private individuals in relation to their race and ethnicity, as well as violation of their human dignity. The practice is contrary to Section 25 sub. 1 of Act No. 1 of 1978 on domestic trade, Section 3 sub. 5 of Act No. 77 of 1993 on the operation of businesses and to Section 23/A of government decree No. 4/1997 (I.22.) kormányrendelet, on the criteria of domestic trade activities.

We also filed a query with the consumer inspection, requesting them on the basis of Section 43 lin. f, of Act No. 155 of 1997 to order an inquiry in the case.

On 12 April 2000, we informed the Captain of the Police Station of K. that local policemen worked as security guards in the discotheque. Act No. 4 of 1998 governs the entrepreneurial activity of security and personal guards. Under ministerial decree No. 24/1998 (VI.9.) BM rendelet, the town police are competent to issue permits for guards. Under Section 44 of the Act, the police may impose a fine up to 100.000 HUF on persons illegally performing security or personal guard activities and on guards who repeatedly or gravely violate the criteria laid down in the Act. Under Section 1 sub. 2 lin. b, of Act No. 34 of 1994 the police are empowered to act in petty offence cases. Under Section 2 sub. 1 the police respect and protect human dignity and human rights. Under Section 13 sub. 1 policemen have the duty to take or initiate measures if they notice or learn about facts or circumstances, which make the intervention necessary. This duty also places an obligation on off-duty policemen, given that they are capable of taking measures at the time deemed necessary. Under Section 13 sub. 1 of ministerial decree No. 3/1995 (III.1.) BM rendelet, policemen officially report or fine on the spot individuals committing a petty offence. Based on the above, we requested the Captain to inform NEKI, whether the policemen implicated in the case possessed the necessary permits, whether they were on duty between 20.00 and 24.00 on 1 April 2000, and whether any of the above policemen had ever reported the association for its practice of discrimination.

On 10 May 2000, attorney István Szikinger, acting on behalf of P. M. and J. O. filed a lawsuit against defendants Association K.L.K. and A. V. at K. Town Court. The suit was based on Section 76 of the Civil Code and Sections 54 and 70/A of the Constitution. The plaintiffs requested the court to find that their civil rights had been violated, to ban defendants from further violations, and to pay 200.000 HUF in non-pecuniary damages and 800.000 HUF in public interest fine.#2

On 26 April 2000 the Captain launched disciplinary proceedings against a number of policemen serving at his station. On 5 May 2000 the police informed NEKI that given the state of the proceedings, they had no reason to believe that the policemen concerned were working as security guards in the discotheque. The policemen had never reported the Club for illegal practice, either.

On 22 May 2000 the County Prosecutor filed a suit with the County Court, requesting under Section 16 sub. 2 lin. d, of Act No. 2 of 1989 to order the association’s dissolution.

On 19 June 2000 the consumer inspection informed NEKI that because “the injury relating to persons belonging to a certain ethnic minority does not concern an openly serving pub, or the dances organised by a club, within premises rented by Association K.L.K.” the inspection terminated the administrative procedure.

According to a letter dated 30 June 2000, the disciplinary proceedings revealed that the club had violated the law on several occasions. This, however, could not be investigated or considered by the police, due to lack of competence. No fact which proved that the policemen had acted unlawfully could be established, therefore proceedings against them had to be terminated.

In its judgement of 2 October 2000, the County Court rejected the County Prosecutor’s suit requesting the dissolution of the association. The court found that only in one instance could it be established that the association had not acted in compliance with its Rules of Governance, i.e. when it had not been the competent body deciding on membership. A single incident may not serve as the basis for concluding that the club’s operation in general is in violation of the rights of others. The court was not satisfied that the events described by the volunteers could amount to the association’s unlawful operation. The right to assembly includes the right of members of a certain NGO to define the rules of its governance and the consequences of the violation of such rules. The judgement is final as the prosecutor appealed after the deadline.

On 28 November 2000 the Town Court delivered its judgement, finding that the defendants violated the rights of the plaintiffs when refusing to allow them to enter the discotheque. The court ordered that the defendants pay 100.000 HUF plus interest to the plaintiffs. During the proceedings, the courts examined in detail the rules and operation of the association. It argued that although under its Rules of Governance the association aimed at “advancing humanitarian spiritual values against material aspects, the elimination of alienation, the formation of active and supportive citizens by showing a good example and providing compassionate advice”; it defined its activities along the line of hotel and other accommodation services. It transpired that since it had been founded, the association had never convened a meeting of its members. The founders themselves could not clarify what concrete activities the association had performed, and how it strove to accomplish its goals. The court admitted testimonies given by two non-Roma and a Roma volunteer, as the defendants could not provide evidence capable of refuting their content. Under Section 84 sub. 1 lin. a, of the Civil Code, the court was satisfied that the defendants had violated the plaintiffs’ civil rights. On 1 April 2000 the plaintiffs had suffered moral damage as a result of not being allowed to enter the discotheque. The court found that the amount of 100.000 HUF was adequate to compensate this moral damage. However, it refused to ban the defendants from further violation, as it found that due to various proceedings, they had given up on the unlawful practice and had in fact offered to admit the plaintiffs as members of the association. Likewise, the court rejected the plaintiffs’ request for the payment of public interest fine. The judgement is not yet final.

1 On 10 May 2000 the minority commissioner made a similar request to the County Prosecutor.

2 Public interest fine is equivalent to punitive or exemplary damages.

Gábor J.

The article also reported that the inhabitants of a Gypsy settlement in B. were frightened as the representative took money from them to buy bricks. They feared their houses would never be ready because he left Hungary with their money in his pocket. He even had them buy mobile telephones from their social policy construction benefit and then sold them for profit. At the same time, the families concerned would have to leave their council flats until the beginning of December. People in B. were angered by the incident. Fearing their revenge, the families guarded their flats armed with sticks and hammers.

At the time G. J. was indeed in Canada. Accompanied by his wife and son, he was visiting his relatives for the duration of two weeks time. Following his return, his relatives and friends told him about the article.

On 10 December 1999 he sought assistance from NEKI. He recounted how following his return, people have been stopping and asking him about the crime as mentioned in the article. Rumour had it that the FBI had brought them back and that he had been remanded in pre-trial detention. NEKI requested information about the allegations from the mayor’s office, the county and the town police stations. Both police forces informed us that they were not proceeding against the client. The mayor concluded as follows. “It is obvious from the article that nobody from the local government commented or refused to comment on the allegations. Therefore – from my part – I do not consider it necessary to react to the article which does not cover my views.” The mayor also refuted all further allegations contained in the article.

Under Section 79 of the Civil Code and Section 342 sub. 1 of the Code on civil procedure the newspaper can be requested to publish a correction within 30 days from the publication of the original article. On 19 December 1999, attorney Imre Furmann, counsel for G. J., requested Napi Magyarország to publish a correction as stipulated in relevant legal provisions.

“The article published on page 5 of the 29 November 1999 edition of Napi Magyarország contains false statements. The article falsely stated that the group referred to had obtained visas for a stay in Canada exceeding three months. Canada has not imposed visa requirements on the citizens of Hungary. It is also untrue that Roma in the settlement of B. had been frightened by G. J’s journey, as it is false that 30-40 families would have to move out of council flats because the houses built by G. J. had not been completed. Statements relating to bribes demanded by G. J. and G. M., former director of the brick factory, both from Roma families and constructors are false. Furthermore, it is untrue that those implicated in the article had made the families buy dozens of portable telephones in order to resell them. No criminal proceedings have been launched against G. J. and he protests against the ill-founded charges put forward by the article.”

Under Section 79 sub. 2 of the Civil Code the newspaper should have published the correction within eight days after the receipt of the letter demanding correction. As Napi Magyarország failed to comply with this provision, the counsel filed a lawsuit, requesting the court to order the newspaper to publish the correction. In its judgement of 16 February 2000 the Central District Court of Budapest ordered the newspaper to publish the correction as requested by the plaintiff. The court found that the “defendant did not offer evidence in regards to the majority of the claims, acknowledging that the article contained false statements of facts.” In lieu of appeals the judgement became final on 23 March 2000.

Notwithstanding the enforceable judgement, the newspaper failed to publish the correction. On 4 May 2000 the counsel requested the court to carry out the judgement. Execution, however, could not be effected as, in the meantime, the newspaper had closed down without a legal successor. A person whose rights have been violated by false statements made in a newspaper article may also seek remedies for injustices inflicted on his/her civil rights. The incriminated article has violated the good reputation, honesty and human dignity of G. J. It has damaged his interpersonal and social relationships. He has suffered and will be suffering disadvantages in his career as a result of the publication of the article.

Despite the fact that several journalists had changed over, it was not known at the time whether Magyar Nemzet – another conservative daily – would become the legal successor of Napi Magyarország. Based on the above, however, NEKI sued both newspapers and MAHIR Publishing Company, the firm liable for the publication of Napi Magyarország. If the legal situation crystallises in regards to the legal succession, changes concerning the defendants might be effected.

According to the lawsuit “as a result of the publication of the article, the social standing of G. J. has changed. Prior to the article he had been an honoured and respected figure of B. People trusted him. He had a working relationship, inter alia, with the mayor’s office. With the assistance and co-operation of the local Gypsy minority self-government he helped construct houses for those obtaining the social policy benefit. Following the publication of the article his business partners had lost their trust in him. On many occasions they refused to co-operate with him because of allegations that he had robbed his clients. Consequently, this year, he and his colleagues could only initiate a much smaller number of constructions as compared to 1999. Local political leaders have also lost their faith in him. G. J. had served as the president of the County Crime Prevention Committee but had to resign due to feelings of hostility towards him. Citizens of B. also turned away from him. Often non-Roma locals have made cynical remarks about him to their Roma counterparts. For example, they said: “ask your voivode, he’s stolen enough”.

The counsel requested the court to establish that G. J’s civil rights had been violated and ban defendants from further violations, as well as to order them to pay 700.000 HUF in non-pecuniary and 1.500.000 HUF in general damages. Attorney Imre Furmann represents G. J. in relation to his civil rights claims. On 22 May the counsel filed the lawsuit but the court has not responded for months. In July 2000 we were surprised by the expediency of the court dealing with similar civil rights claims instituted by the Minister of Interior against an MP who had implicated him in one of the biggest economic scandals following the political changeover in setting a day for trial.

Inspired by this compliance with the due time requirement, the counsel requested information from the court concerning the day of trial in the present case. The case will be heard on 17 January 2001.

Árpád V., Jenô V., Kálmán L. and Kitti L.

In the afternoon the neighbours’ children told the boy’s mother about what had happened in school. They also recounted that this had already occurred, since the boy had been slapped once already. That time he peeped into the room of the trainee teachers and had been caught by the headmistress. He had been slapped twice and when trying to pull away from the third one, the headmistress told him: “get your dirty Gypsy face back here”. She had slapped him for the third time as well.

The following day the boy refused to go to school because he was scared of the headmistress and also of his classmates’ jokes. This had never happened before. He had always been happy about going to school, where his favourite subject had been physical education.

As this was a repeated offence in that year, the following day the boy’s mother visited the headmistress and demanded an explanation for the beatings. The headmistress assured her that she would do the same in case the boy leaves his equipment at home. The mother then complained to the local Gypsy minority self-government, where her complaint was recorded. On 8 November 1999 the president of the minority self-government wrote to the mayor and requested him, himself an employee of the headmistress, to hold her responsible for the incident. On 22 November the mayor informed the president that taking the local councillors’ unanimous decision into account he would not initiate disciplinary proceedings against the erring teacher. He went on to say “it has been established that the unacceptable behaviour of certain – mainly Gypsy – pupils results in a intolerable situation in the school. The parents should ensure for the discipline of their children, in which case such supposed injuries as contained in the submission would not occur. I believe that as long as there are schools, there will be similar “disciplinary’ measures ” in existence.

Finding the mayoral response insulting, the president sought assistance from NEKI. We conducted research in the case and found that Á. V. was not the only child whom the headmistress or other teachers had beaten. She beat and humiliated K. L. of the sixth grade on numerous occasions. As there are no lockers in school, children take their indoor shoes with them every day. On 3 November 1999 K. L. forgot to take his indoor shoes with him. Before the class was to begin the headmistress noticed that the boy had his outdoor shoes on. She instructed him to take his shoes off. He said that he did not have his indoor shoes with him. Then, in front of his classmates, she slapped him and he took his shoes off. His classmates laughed at the scene. The boy should have stayed in socks all day but was so ashamed that he left after the first class.

On 22 November Ki. L. wanted to participate in physical education in pants and indoor shoes, because she did not have her equipment on her. The headmistress demanded she take her pants off. She wanted the girl of sixth grade to exercise in underpants. The girl refused her instruction. She slapped her three times, but finally agreed to her exercising in pants.

All three children told us that they had been beaten before. The headmistress had battered them beforehand. She had slapped them or pulled their hair either because they ran in the corridor during the breaks or because they returned during class or laughed.

Any violation of discipline seemed to result in one or two slaps or another form of maltreatment in school. The maltreatment usually took place in front of other pupils, thus the children’s physical humiliation was coupled with verbal insults. However, it was not only the headmistress who resorted to such forms of discipline, other teachers also beat the pupils sometimes.

As a result of breaking from discipline, a teacher slapped J. V. twice and then gave him two stronger hits. His sin constituted of fighting with his classmate. As a result of the fight, the boys knocked over a bucket full of water and the water bucket broke. The headmistress made them wipe the floor and obliged the parents to replace the water bucket. To lend weight to her measures, she gave them two slaps each.

Our colleagues interviewed the headmistress. She did not deny that the above incidents had happened the way the children and their parents alleged. She could not see why her method of discipline, i.e. beating the children should be impermissible. Her only complaint was in relation to the parents making a fuss over these incidents every time they occurred. We requested a psychologist to examine the children. Her inquiry supported the allegations. The headmistress recounted to her that she had had problems concerning the beating of Roma children prior to her assignment to her post. Following the commencement of the new job, however, “the physical and psychological injuries inflicted on Gypsy children have become more frequent”. The psychologist found that beating a child was an accepted norm in school. Furthermore, she uncovered that “shouting, bullying because of one’s Gypsy origin, conversing with each other in impermissible tone and content, pulling the others’ hair, slaps, moreover kicks occur in school. Based on situation games it could be established that the ësin’ or ëbad’ committed by children was not in proportion with the gravity of the punishment given by the person of authority”.

Following our research the parents filed an official report against the headmistress and a teacher. The Sz. Town Police Station launched an investigation against the teacher and the headmistress on count of endangering minors. Attorney Lilla Farkas represents the victims in the proceedings.

On 13 November 2000 the police terminated the investigation due to lack of crime under Section 139 sub. 1 lin. b, I. of the Code on criminal procedure. The police argued that although the teachers did not deny the allegations, they emphasised that these beatings had been of an educational nature. The police had ordered for medical and psychological experts to examine the victims. The medical examination could not support the allegations of physical abuse, due to the lack of medical expert opinions from the time when the beatings had occurred. Based on testimonies given by the victims and suspects, however, the medical expert assumed that all injuries had healed within eight days. “Based on the expert opinion, it could be established that the victims’ physical and mental growth was adequate at their age and that they had not fallen back in advancement in comparison to others of the same age. Psychological damage or psychogenic symptoms relating to the teachers’ conduct and to accounts of past events could not be detected”. Furthermore, the parents did not or only partially desired the suspects to be punished.

The victims launched proceedings for light bodily injury and other crimes, all subject to private prosecution.

T. village

Wishing to immediately end the unlawful situation, she returned all students concerned to normal classes. Naturally, J. who had been studying in the special class from second grade encountered enormous problems in keeping up with the others and failed to pass many subjects at the end of the first semester. As a result of a series of failures this open and jolly girl became introverted and lethargic. She lost seven kilos and had constant problems with her stomach and regularly fainted. The headmistress was aware that J. could only deliver in the special class, but in lieu of recommendation or examinations by competent experts, she was convinced she could not lawfully return her to the class. She constantly pressed for the examinations but they were scheduled not before 12 January 1999. Experts found that J. was severely hindered in her learning abilities and could only fulfil requirements in the special class. However, due to her age the expert commission could not recommend her return to the special class. The headmistress dared not, in her own competence, to order her new placement, therefore J. remained in the normal class. At this point J’s father turned to us for help. On 3 March 2000 we conducted research in the village, visiting and interviewing the parents, the headmistress and the mayor. It transpired that J. was not the only child who had unlawfully been placed in the special class, which in fact had been launched to teach pupils with smaller mental disabilities. We identified nine more children who shared J’s fate in school. The parents and the headmistress claimed that their story began in 1994, when the former headmistress’ friend – another teacher at the same school – had just been finishing her studies as a remedial teacher. In order to obtain her diploma, she needed to practice teaching in class. Later, of course, she needed a job appropriate for her qualifications. According to allegations, these considerations served as the basis for a decision, i.e. that a merged small-sized class would be created to cater for pupils with learning and behavioural problems. However, the placement of children in this class had not been preceded by expert examinations compulsory under relevant legal provisions. Between 1994 and 1999 ten children had spent shorter or longer periods in the special class. Some of the children had been placed to and fro normal classes. J. and N. B., a boy, spent the longest period, i.e. six years in the special class, whereas the other children spent an average 1-3 years there. The parents unanimously stated that they had in each case been made to decide: they either consent to the placement of their child in the special class or take him/her to another school, i.e. to another village.

NEKI commissioned a child psychiatrist to examine the children and provide her opinion in the case. The psychiatrist measured the children’s mental abilities and sought to assess the form and gravity of damages they had suffered as a result of being taught for years by methods inconsistent with their abilities. The psychiatrist tested their IQ levels (MAVGYI-R) and asked them to draw their families, a human being and a tree. She found that none of the ten children were mentally disabled. Furthermore, she emphasised that they had to face an awful amount of problems compared to their schoolmates in this and in high school, regardless of whether they were placed in a normal, or left in the special class. As a result of their unlawful and professionally inappropriate placement in the special class, these children have fallen years behind their age group. Those who have spent five or six years here may never be able to overcome the disadvantages suffered. Also, changes in their placement have caused incalculable moral and psychological damages. The psychologist’s opinion paved the way for our legal arguments. Under Section 7 of the Act on public education virtually any form of discrimination against students is prohibited.2# Under Section 10 sub. 3 students have the right to be educated and taught according to their abilities, interests and capabilities. Under Section 19 sub. 7 the duty of teachers is to especially take into consideration and assist in the advancement of students’ personal abilities and talents and to respect the human dignity and rights of the students. Under Section 30 sub. 8 the Expert Commission on Rehabilitation has the power to decide whether or not students have disabilities and learning or behavioural problems. Under Section 35 sub. 2 the Commission shall recommend the special placement, the form and method of and the expert educational service needed for students. In general, following their examination, the Expert Commission recommends the type of education students shall continue their studies in. Parents, however, are not under the obligation to accept this recommendation. According to ministerial decree No. 14/1994 MKM rendelet, they have the right to initiate before the village notary that their case be referred to another commission and their child be re-examined. Disregarding the provisions rendering expert examinations compulsory, the school denied the right from parents to learn about the abilities of their children, the most appropriate form of schooling, and the remedies open to their children in case of disagreement with the official results. Not only the former headmistress and the teacher involved in the case, but the village notary also violated legal provisions relevant in the case. Under Section 54 of the Act on public education the village notary has the duty to review the legality of the operation of the school, including proceedings relating to the placement of disabled children. Furthermore, he is responsible for lawfully demanding from the central budget allowance due to each disabled child taught in classes operating under a different educational plan. The village notary should have realised that in lieu of lawful placement proceedings and necessary expert opinions, central budgetary support could not have been demanded. It is also unfathomable how the events in the school’s special class have gone unnoticed by local councillors and the mayor of T.#3

Meanwhile, following a televised report about the events, the Ministerial Commissioner for Educational Rights has launched an investigation into the case. NEKI has co-operated with the commissioner during his inquiry. We requested a heightened level of assistance in facilitating that all possible means would be allocated to the school in order to ensure that the students concerned catch up with their peers. The commissioner’s inquiry has found that the placement of students without disabilities into the special class was unsubstantiated and illegal. Furthermore, it has been found that the majority of the students concerned spent a longer period in the special class, i.e. they were taught on a lower level than their abilities would have required. Thus, their right under Section 67 of the Constitution, in terms of which every child has the right to protection and care from their family, the state and society that is necessary for their adequate physical, mental and moral development, was violated. The commissioner has also established that the illegal placement amounted to discrimination under Article 1 of the UNESCO Covenant on combating discrimination in education.#4 B. E. remedial teacher’s conduct has been found in violation of Section 19 of the Act on public education. É. E. and Gy. P., former headmistresses have also been found responsible for the injustices as they co-operated in creating or maintaining the unlawful situation. Moreover, L. Sz. village notary did not comply with his duty according to which it was his task to ensure the lawful operation and control of the school. Therefore, based on his power under ministerial decree No. 40/1999. OM rendelet, the commissioner recommended that the mayors and local councillors of T. and H. launch disciplinary proceedings against B. E., É. E., Gy. P. and L. Sz. Furthermore, the commissioner requested the President of the County General Assembly to take all measures necessary to accomplish the following: (i) teachers shall assess the level of knowledge of all students concerned, on the basis of which appointed experts of the county pedagogical institute shall elaborate individualised development plans aimed at the integration of students into normal classes; (ii) the institute shall appoint teachers to educate these students along the development plans.

Attorney Lilla Farkas represents the children in the legal proceedings. NEKI and the counsel agreed that an out of court settlement concluded with the local governments would best serve the clients’ interests. On 23 June 2000 the parents, the counsel, local representatives and the mayor from T., the village notary and the headmistress were present at the negotiations initiated in order to reach a settlement. The local councillors seemed to be of the opinion that a court should decide about the damages. The village notary has never admitted that the students’ rights were violated, which has made negotiations with the villages problematic.

On 27 July 2000 the counsel officially reported the remedial teacher and the former headmistresses for ten counts of endangering minors as punishable under Section 195 sub. 1 of the Penal Code. The counsel requested the Town Prosecutor to control the investigation into the case. The police appointed three educational experts to examine the students concerned. The experts unanimously found violations of law and professional requirements concerning the teachers’ conduct. At present the case file is being examined by the Attorney General’s Office as to whether or not data available would substantiate an indictment. Cautious prosecutorial attitudes are to a certain extent understandable as the present case relates to issues that have not arisen so far in common practice. However, delays in the process of investigation seem worrying.

On 29 January 2001 the counsel called on the local governments of T. and H. to pay 13.530.000 HUF damages in total to the students concerned. Moral damages requested have been individualised and are ranging from 150.000 to 1.300.000 HUF. Pecuniary damages have been required, in order to cover educational costs incurred by the implementation of individualised development plans and to provide for the loss of earnings during the extended periods some students will have to spend at school instead of work. The counsel has requested the payment of pecuniary damages on a monthly basis.

1 We later found that this class has interchangeably been called special class, small group class or class taught under a different education plan.

2 It shall be noted that out of the ten children concerned, five children are of Roma origin. Although we could not establish a pattern of ethnic discrimination in the case, due to the gravity of the violation of rights involved, we had resolved to take it on.

3 It is, however, not only the local government representatives or officials in T. which are to be blamed for the injustice done to the students. T. has been operating the school together with a neighbouring village, H., whose representatives and mayor have also failed to ensure the lawful operation of the school. Co-operation between the two villages has not been without problems for the past years.

4 Pronounced in Act-decree No. 11 of 1964.

M. family

In August 1999 an anonymous letter full of humiliating expressions about the deceased daughter warned the family against going too deep into the circumstances of the accident. The letter threatened to set their house on fire, if they were to act otherwise. On 8 September 1999 the mother made an official report at the Police Station in E. In their decision of 10 November 1999, the County Police terminated the investigation launched against the driver on count of the misdemeanour of causing a lethal accident. On the basis of the data available in the case, the police could not establish the commission of a crime. The decision stated that the victim and her brother broke the rules of transportation when they walked on the right side of the road instead of the left. The police admitted the driver’s statement according to which, prior to the accident a car driving from the opposite direction blinded him, as a result of which he could not spot the people dressed in dark clothes and walking in front of him. Furthermore, Cs. G. claimed that usually there are no pedestrians on the given road, therefore he had reasonable ground to believe that nobody would walk there on the day of the incident either. The expert found that he was driving at the speed of 60-70 km/h when knocking the victim down.

On 29 November 1999 the mother sought assistance from NEKI. She recalled that, although the accident had happened at 21.00, the family was only informed about it at 00.30. Once in the hospital, the doctor informed her that her daughter had been clinically dead since shortly after the accident. He asked her whether she would offer the girl’s organs for the hospital. The brother was still in shock when the police interrogated him in the GP’s flat. He was then taken back to the scene of the accident and arrived back to his family at 00.30. The driver’s family had already been present in the GP’s flat. The mother recalled that although both children were wearing dark coats, there were broad white patches on their arms and bright patches on their backs. Furthermore, she claimed that pedestrians could not reach one village from the other without walking on the road where the accident took place. She also recalled that pedestrians always walked on the right side of the road because of the path partially covered in gravel and grass, which was more spacious than the path on the other side. The brother confirmed that a car had indeed driven past them from the opposite direction but this, in his view, could not have prevented the offender from noticing them, because of the time lapse. As it later transpired, the offender was driving with two friends and a hitchhiker in his car. The latter got in the car a bit earlier on the same road, i.e. a while earlier the driver had no problems noticing a pedestrian. The hitchhiker recalled that following the accident he had to call on the driver to stop. The police have not withdrawn Gy. Cs’s driving license after the accident.

In support of the mother’s complaint of 26 November, on 30 November 1999 NEKI sent a query to the County Prosecutor. We requested the prosecution to examine the following questions as they had been left unanswered by the police investigation.

1. Did the police obtain a meteorological expert opinion relating to weather and visibility conditions at the time of the accident?

2. Did the police take into account the fact that on the same road the driver had earlier noticed and had given a lift to another pedestrian also dressed in dark clothes?

3. Did the police closely examine the clothes the victim wore at the time of the accident, with special emphasis on the bright patches on her coat?

4. Was the driver tested for alcohol consumption or drug use?

5. Did the police establish how long the driver had had his driving license; whether he had previously caused an accident?

6. Did the investigation establish the frequency the driver had driven on the given road?

7. Did the police inquire into the number of pedestrians walking along the road?

8. Did the police examine whether a car driving at the given speed could have caused such injuries as detected on the victim?

The same day we requested information from the Police Station in E. concerning the investigation launched on the official report made by the mother. On 1 December 1999 the police informed us that they had been investigating against an unknown perpetrator on count of the petty offence of dangerous threat but on 23 November 1999 terminated the procedure, as the offender could not be identified.

On 22 December 1999 the Attorney General’s Traffic Offences Department informed us that the County Prosecutor’s decision terminating the investigation had been thrown out and the County Prosecutor had been ordered to reopen investigation into the accident.

On 4 January 2000 we initiated a repeated query with the Police Station in E., and brought their attention to the fact that the offensive expressions used in the incriminated latter amounted to the violation of Section 181 of the Criminal Code on the breach of piety. On 26 January the police informed NEKI that the Town Court of Sz. was competent to proceed in the case, therefore they had referred the case file to the court.

On 3 February 2000 the County Prosecutor ordered investigation against Cs. Gy. on count of the negligent causing of death in a traffic accident. 3 April 2000 was given as the deadline of the investigation. On 7 February 2000 the Town Court terminated the proceedings for the breach of piety, because the police could not gather information either relating to the author of the letter, or to the person who posted it. On 25 February, acting on behalf of the mother, NEKI filed a complaint against the court decision, referring to the fact that not being informed about the personal hearing by court, the mother had been prevented from exercising her rights as private prosecutor. Furthermore, we questioned whether the police had acted with appropriate care when investigating the case, as they had failed to interrogate the mother who had reported the case and had not appointed a forensic handwriting expert to establish the author of the letter. In its decision of 28 March 2000 the County Court threw out the decision of first instance and ordered the Town Court to continue proceedings and order an investigation into the allegations.

On 23 May the County Police informed NEKI about the finalisation of their investigation and the referral of the case file to the County Prosecutor. In June we commissioned attorney Zoltán Kabai to represent the victim in the criminal proceedings. On 5 December 2000 the County Court found Cs. Gy. guilty in negligently causing the death of B. M. and sentenced him to eight months imprisonment to be carried out in the lightest manner but suspended for a year. The County Court argued that the defendant failed to choose the appropriate speed and was only using dipped headlights, although he should have foreseen pedestrians on the only road connecting the two villages. The court considered the defendant’s young age and the victim’s role in the accident as mitigating circumstances. The defendant has not been barred from driving.

The present case seemed identical to the one of the 16 year old Zs. H. and her family, as reported in 1999. In the latter case, however, we could not have an impact on the route of justice as the family only sought our assistance after the decision of first instance, which the prosecutor had not appealed.

NEKI commissioned attorney Elemér Magyar to represent the family in their civil claim for damages against the offender and his insurance company. The multimillion civil case is currently pending before the Town Court of Sz.

Other cases taken on in 2000

Lajos Gy.

In a decision of 2 August 2000 the centre rejected the client’s application, because he did not meet the admission requirements. L. Gy. then sought assistance from NEKI as he felt he had been discriminated against. Under Section 2 of Act No. 63 of 1993 on the protection of personal and access to public data, information relating to one’s racial, national and ethnic origin is considered to be sensitive data. Under Section 3 sensitive data may be handled as long as the person concerned has consented to it or the law so requires.

NEKI requested information from the head of the centre as to how the fact that the applicant belonged to an ethnic minority could be recorded in his file. We also inquired about the reasons on the basis of which the application had been rejected. The response contained the following argument: “Our colleague processing the application of L. Gy. recorded the expression complained against in an internal form regularly used by our office. The purpose of this form is to assist our office’s Steering Committee in applying the required affirmative action policy directed at vulnerable groups. This internal form was prepared for this specific occasion”. The head of office went on to explain that the client participated in the admission process organised by the trainers but failed to meet the admission criteria. The company providing the course independently decided in the case. The centre had no information as to the grounds on which this decision had been made. On 1 August 2000 only eight applicants met the admission criteria. This implies that applicants had to fulfil strict requirements, which however, is not unusual, given the nature of the course. Finally, the head of the centre concluded that “we will be more cautious in the future in ensuring that sensitive data will only be dealt with by us if it is in the applicants’ interest and subject to their consent. We hope the majority of people concerned will understand our standpoint, i.e. that these measures are necessary to ensure that the individuals are provided with preferential treatment”. NEKI finds this response admissible and does not wish to take further legal action in the case.

I. O’s housing case

The case was communicated to NEKI after the Office of Public Administration and the County State Guardian Authority launched inquiries into the incident and called on the local government of K. to put an end to the unlawful situation. Nonetheless, we followed up on the case and on 1 December 1999 made queries with both local governments. We requested answers for the following:

1. Who owns the house in K? Is it I. O. or the local government of H.?

2. If I. O. is a tenant in the house, who does he pay rent to? Which local government is responsible for providing social support for the family?

3. Where is the family registered?

4. Which school do the children attend?

5. Has the local government of K. thrown out their unlawful decision relating to the family?

Both mayors have responded within a week. We were informed that the local government of H., to whom the family pays 1000 HUF rent each month, owns the house. The local government of K. has competence in matters relating to social provisions. The children attend school in K. The local government of K. threw out the incriminated decision on 30 November 1999.

Mrs. Miklós T.

In order to carry out construction work, the local government moved the family to another council flat. They signed a rental contract for this flat on 3 January 2000, effective between July 1999 and 16 July 2000. The terms of the contract specified that the family had to be placed here because of the state of their previous flat. The contract, on the other hand, cast doubt on whether or not the family may later move back to their original council flat. At this point Mrs. M. T. sought assistance from NEKI, because – as she claimed – a colleague of the company dealing with council flats had previously promised that she would be able to move back to her previous flat. This promise was confirmed in a letter sent by the company, specifying that her rental contract would be prolonged. However, a close examination of the letter proved that it was unknown whether she would be able to go back to her original council flat. NEKI was later informed that the family would not be in a position to move back as others had already moved into the council flat. The local government was trying to locate another flat for her, but each time officials made it clear that the local government did not have any free or empty council flats at their disposal. The finalisation of the matter is not only desirable because the present flat of 20 m2 is inadequate for housing three persons, but also because a number of old tenants have been harassing the family since they moved in. This harassment culminated in an official report to the police. The ensuing criminal proceedings have since then, however, been terminated.

NEKI is co-operating with all parties concerned in order to secure adequate housing for the family.

Ms. Ágnes H.

She regularly made queries with the competent authorities because she wished to start construction as soon as possible. Having been constantly left without an answer, she went to see an official in person. Once in the Mayor’s Office, she was surprised to learn that her request had been rejected, but the decision had not been mailed to her. The decision had a date on it but lacked the signature of a competent official. She found two documents in the case files, about which she knew nothing. In the first document somebody utilising her signature asked permission for dismantling the buildings, whereas in the second one of 1 April 2000 a technical description for the dismantling operation was to be found. The permission for dismantling concerned the old house on her plot. However, she had never asked for such permission, as she intended to build a house in the other end of the plot. Although the date of receipt, number of case file, date and the name of the official in charge of the case had been recorded on request, it remained to be known what had happened to it. The case was later referred to the National Office for the Protection of Historic Monuments, without the request sent in the file.

It transpired that one of the two run-down houses standing on her plot was a protected historic building, despite the fact that the real-estate registry has never contained such information. Thus, Ms. Á. H. was right when supposing that no legal hurdles existed, which would prevent her from building a new house in the other end of her plot, as under relevant laws it is allowed to have more than one house built on the same plot. She also learnt that the officer in charge and the architect commissioned by her had inspected the plot. Her relatives had been present at the inspection and heard the officer stating that he would never issue a construction permit because Gypsies may not build houses here and the neighbour would not want this either.

Ms. Á. H. asked for the decision and appealed against it to the Office of Public Administration. The Office has not responded to her appeal, probably due to its lack of competence in the matter. Under Section 40 of Act No. 57 of 1997 the National Office for the Protection of Historic Monuments has powers to proceed in all matters relating to the permission of construction on a plot. This, of course, does not entail that the Office of Public Administration should not have declared its lack of competence in a formal decision delivered to the client.

When the local government realised their lack of competence in the case, they referred the case to the Office for the Protection of Historic Monuments without notifying the client about the referral. The client learned about the proceedings from the latter agency, when, on 10 June 2000, she received a decision in which the Office rejected her request for permission. The rejection was based on the expert opinion issued by the local government, according to which the plot was too narrow to meet the requirements under the local decree on municipal planning. Furthermore, the decision found that the construction plan was contrary to Section 36 sub. 2 of governmental decree No. 253/1997 (XI.20.) Kormányrendelet, under which tenements are to be built at least six metres away from bordering plots. The client appealed against the latter decision and is waiting for the decision of second instance.

In August 2000 Ms. Á. H. brought her case to the attention of the television programme Fókusz televised by RTL Klub, a commercial channel. She gave account of her story and the underlying reasons of official attitudes. Reporters visited the individuals concerned and recorded with a concealed camera their account of how the architect forged the client’s name on the request for the construction permit, and how the former owner had been called to re-purchase the plot from the Gypsies. Following the televised programme the parliamentary commissioner for national and ethnic minorities contacted Ms. Á. H. because of possible the discrimination in her case. The commissioner heard the client and reported the case to the County Prosecutor. Investigation on the account of the abuse of one’s official powers has been ordered.

The minority commissioner referred the client to NEKI. Attorney Imre Furmann represents her in the criminal proceedings still pending before the police.

S. town

In mid-June 2000 the water supply was limited. The limitation concerned approximately 300 people. 70 % of these people had failed to pay water fees for months, which accumulated a multimillion HUF debt towards the company. The limitation in practice amounted to cutting the supply of water in the hottest days of the year. Public taps were open in each building. The measures had also taken their toll on the people who had had no debts. The National Health Service did not find the measures problematic from the view of public health and hygiene.

With a view to putting an end to the situation, NEKI in co-operation with the local Gypsy minority self-government initiated negotiations between the local government, the owners and the water supply company. The inhabitants undertook to pay 60% of their debts from regular child protection allowance due for the summer months and from other private resources. The remainder 40% will be paid in instalments.

Viktor B.

Having finished the construction of the new building, on 8 April 1998 they requested the local government to issue a permission allowing the store to remain. The former owners, who originally built the garage, had forgotten to obtain the construction permit for it, therefore in retrospect only the latter permission could be acquired. The local government rejected the request and ordered V. B. to reconstruct the original building, i.e. the deteriorated garage. They argued that, according to municipal planning a main road would be running where at present the garage-cross-grocery store is situated.

V. B. appealed against the decision. On 29 May 1998 the Office of Public Administration threw out the decision and ordered the notary to reopen proceedings. The Office argued that the implementation of municipal plans is not foreseen for the near future, therefore the granting of a provisional permission should be considered, especially taking into account that allowing the present building to remain is more preferential for city planning than reconstructing the garage.

In June 1998 the family re-launched their request for a provisional permission. They agreed to dismantle the store by the time the construction work of the main road starts. They informed the local government that they intended to open a grocery store in the building. On 31 August 1998 the notary rejected their request and ordered them again to reconstruct the dilapidated garage. The decision repeated the arguments of the previous rejection.

In the appeal procedure the Office agreed with the local government this time. On 12 October 1998 it upheld the decision of first instance. The family then mounted civil proceedings, requesting the Budapest City Court to review the administrative decision. On 2 November 1999 the Court threw out the decision and ordered the local government to repeat the proceedings. The court called on the local government to examine whether the permission could be granted provisionally, for the owners agreed on the future dismantling of the building. The third first instance decision of 9 June 2000 rejected the family’s request again and ordered them to dismantle the building within 30 days. This time the local government obliged the family to obtain a number of permissions that were otherwise not necessary at all for a permission allowing the building to remain. The family had to obtain a technical fire protection plan, an expert opinion from the National Health Service and a permission to offer various grocery products from the Budapest Branch of the Food Control Authority. All authorities provided permissions to the family, however, the request was rejected on the grounds of the main road construction.

Having received the third rejection, the family sought assistance from NEKI. They found the local government’s proceedings gravely unfair. They complained of the demand for expert opinion and the fact that some of their neighbours had in the meantime constructed certain buildings without problems. They felt they were discriminated against based upon their ethnic origin.

The family once again appealed to the Office of Public Administration, but to no avail.

NEKI has found that instead of the district local government, the Budapest City Government has competence in regulating and ensuring financial resources for the construction of main roads such as the one planned in the present case. The incriminated construction indeed features amongst long-term investment plans but until 2006 not even the preparatory works for this construction appear in detailed municipal development plans, i.e. they would not start before 2008-2010. Given the above information, nothing in fact could have prevented the local government from issuing the permission as required by the family. In October 2000 they therefore instituted judicial review proceedings once more. Attorney László Teleki represents them before court. The case has not yet been tried.

H. village

NEKI visited the village on several occasions to interview all parties concerned. We commissioned a psychologist to prepare an expert opinion about the children. We were curious as to how the students of the special class would stand in comparison, based upon an IQ test, with their peers studying in normal class. We also aimed at finding out whether children had been physically abused, and if they had been, what psychological impacts had this abuse had on them. Twenty students took part in the test; twelve of them were studying in special and eight in normal class. The psychologist tested their IQ levels with the Raven test for adults and their personalities with the Eysenc Questionnaire for adults.

All but one child tested showed high levels of neuroticism, i.e. emotional instability, stress. Children also showed high levels of impulsiveness and aggression. The psychologist established that the results implied the children’s fear of punishment and pain manifested itself in behavioural disorders and bad behaviour.#2 These behavioural disorders severely hamper their performance in school and make their reactions appear as if they were mentally disabled. The IQ test showed an even more striking result: all students showed average performance. If one were to disregard zero results by the two “mentally disabled” children, one would find that the average result of the students attending special class was better than that of the “normal group”. Consequently, the IQ test could not detect differences between 18 children studying in the special and normal classes respectively. The psychologist diagnosed dyslexia, dysgraphia and neurotic problems with four children attending special and six children attending normal classes. Despite of examinations by the Expert Commission for Rehabilitation of each student placed in the special class, these symptoms had not been detected, therefore steps to treat them had not been made either. The psychologist confirmed that the non-treatment of such symptoms places obstacles on thinking, learning and due to regular failures at school may lead to behavioural problems. Finally, it may lead to disabled symptoms on children with normal mental abilities.

It shall be noted that remedial teachers do not teach special classes, as there is not a single remedial teacher in the school. In practice, teachers educating children in normal classes teach children in special classes. It remains to be answered how the school provides adequate training for these children and how it utilises double central budgetary support due to such children.

First Mrs. J. A., then on 22 February 2000 NEKI requested the local government, the body managing the school, to launch an inquiry into allegations, paying special attention to physical abuse as purported by the headmistress. In his letter of 31 March, however, the mayor labelled the above complaints as un-founded.

NEKI resolved not to litigate in the case, because we feared that court proceedings lasting for years would not, under any circumstances, serve the children’s interests. Also, effectively gathering evidence seemed cumbersome if not impossible. We were of the view that the incidents in the school are due to such complex social issues that they might not be efficiently resolved in court proceedings. Furthermore, we considered that without changes in the present school system, in teacher training and the examination of mental disabilities, real solutions might not be delivered. Several researches and the 1999 thematic report of the parliamentary commissioner for national and ethnic minorities have called attention to a nation-wide problem, in terms of which a form of ethnic segregation of Gypsy students has resulted from their placement in special classes launched for children with mild mental disabilities. According to estimates, more than half of the children studying in these classes are of Roma origin, thus the proportion of Gypsy students in these institutions is six or seven times greater than in the entire school system.3# The school of H. village is a textbook example of this phenomenon. All students attending special classes in this school are Roma, although – according to the psychologist – they are not mentally disabled. The psychologist found that if they were provided with adequate treatment and training, these children could be taught in normal classes. Their placement in special classes is superfluous, moreover, damaging. The latter findings imply that expert commissions have equally been responsible for the placement of these children in special classes.

On 8 November 2000 NEKI requested the ministerial commissioner for educational rights to launch an investigation into the allegations and attempt to resolve conflicts between parents and teachers. We highlighted the following issues:

1. Are children being beaten in the school? Does the headmistress’ attitude contribute to the physical abuse?

2. Is hateful speech frequently used in school against Gypsy students and their parents?

3. Why are there only Roma students in special classes?

4. Do these classes rather serve to segregate children of which they think would not conform than to ensure their catching up with the others?

Notwithstanding legal regulations# ordering the regular review of children’s abilities, these children have not been re-examined. Likewise, teachers have the duty to follow up on the development of children attending special classes and initiate their return to normal classes if circumstances so indicate. No such procedure has been initiated in H. Under Section 30 of the Act on public education, additional staff and material resources shall be allocated to special classes to ensure the peculiar care and education required by children with disabilities. It is disputed whether the legal requirements are fulfilled in H., given that the school does not employ remedial teachers. Is the prohibition of discrimination as stipulated under Section 4 sub. 7 of the Act on public education ensured? Is it ensured under Section 10 of the Act that, special attention be given to the personality and human dignity of children, respect for their rights, to the prohibition of humiliating treatment or punishment, and that students have the right to be provided with education that best suits their abilities, interests and talents? It is endured under Section 19 sub. 7 lin. b, that the teacher’s basic duty is to take into account the individual abilities, talents, speed of development, socio-cultural situation, disability of children and to help vulnerable children in catching up.

We requested the ministerial commissioner to inquire into possible ethnic discrimination against Roma students and into the possible violation of the human dignity of Roma students by the leadership and certain teachers.

1 An all-Gypsy class was launched this September as well. Based on the timetable we assume that this class is for children who need to catch up with the others. The client’s younger daughter was assigned to this class despite of the expert commission’s opinion, which simply stated that she "can start her elementary school studies in the academic year of 2000/2001".

2 All teachers interviewed as well as the headmistress acknowledged that sometimes they were "forced to resort" to physical punishment. This, however, had always been prompted by the bad behaviour and aggression of the children, usually in circumstances in which "one child had to be protected from another one". Nonetheless, Mrs. J. A. specifically complained about the incident during which the headmistress on the street hit the head of her younger daughter with a coke bottle so hard that she pushed the sides of the bottle in. As it later transpired the girl stole something from a classmate in school but did not admit the theft. This resulted in the headmistress’ violent response, which she herself admitted to. Following the incident the girl had to undergo a disciplinary procedure, and as a result she was punished by being placed in another school. The penalty, however, was suspended for six months.

3 Children with mild mental disabilities are integrated into normal classes in many countries. In Hungary, on the other hand, such examples can hardly be found. According to a paper published in ‘Report on Hungarian Public Education 2000’, 70% of children with mild mental disabilities attend special schools, whereas the rest study in segregated special classes of normal elementary schools. In 1999 Delphoi Consulting found that 80-90% of children taught in remedial education are Roma.

4 Sections 17(3) and 20(4) of ministerial decree No. 14/1994 MKM rendelet.

András K.

For 25 years the client taught in an elementary school. For the last ten years he taught mainly Roma students in special classes. On 31 May 2000 he was tested for alcohol in his blood. He was dismissed as a result of a disciplinary procedure and the court of first instance upheld this disciplinary measure. A. K. admitted that prior to the day of inspection he had consumed more alcohol than usual and that he had also had a shot of plum palinka in the morning. However, he asserted that the disciplinary sanction was too grave when compared to his misconduct.

The local Gypsy minority self-government and parents have came to

his defence and they would like him to continue teaching the children. They have stood up in support of his professional abilities, since for years he has not failed in achieving success with children in special classes. Approximately 90 parents have lined up in his support.

According to case law, the level of alcohol detected on the client is very low. 0.008 concentration of alcohol in one’s blood is needed to establish that one is under the influence of alcohol. Although drinking is a severe wrongdoing for a teacher, we believe that the sanction imposed on A. K. has been too grave and disproportionate to his wrongdoing. Imposing such a sanction on a 50-year old teacher in the countryside is tantamount to render him unemployed. A. K. has appealed against the first instance judgement. NEKI has been monitoring court proceedings on the appellate level.

‘Man and Society’

The second paragraph of the incriminated chapter reads as follows: “the majority of Roma has not been able and willing to conform to a civilised European lifestyle. […] However, they worked as hangmen – they are said to have tortured György Dózsa#1 and his comrades to death, although in this case they acted on their superiors’ orders – and spies”. The book also contains several false statements, e.g. “the number of these people is much smaller than that of the majority population, therefore they are called a minority, i.e. ‘ethnics’#.2 […] Gypsies speak two of their own languages: ‘Beash’ and ‘Povary’.

Conclusions drawn by the chapter seem even more staggering: “Life for a part of Gypsies has been marked by crime. Education and learning may raise Gypsies to a level where they can integrate into society through work. This process requires a lot of patience and time, but there is no better or other way.”

The Roma Press Centre contacted NEKI. Parallel to actions by other Roma organisations, NEKI also made a query to the ministerial commissioner for educational rights.

The commissioner’s inquiry found that the incriminated chapter violated the human dignity of individuals, especially children belonging to the Roma minority, thus it was contrary to Section 54 sub. 1 of the Constitution. Under Section 10 sub. 2 of the Act on public education the personality, human dignity and rights of children shall be respected and students shall be protected from physical, as well as mental violence. Under Section 11 sub. 1 lin. h, students have the right for their ethnic identity to be respected. Experts appointed by the commissioner established that “The chapter on Roma contains false statements and misrepresentations that without exception lead to conclusions detrimental to Roma. It also reflects negative stereotypes and expressions exaggerating these stereotypes”.

The inquiry revealed that in 1998 the publishing house requested the supplementary material to be registered among schoolbooks but was rejected by the Minister. In 1999, however, the book was registered as supplementary material, because effective legal regulations did not then require the expert examination of such materials.

The representative of the ministerial commissioner called on the publishing house to withdraw the book from schools and informed them that their request of registry for 2001–2002 had been rejected. The publishing house complied with the requests.

Triggered by the case, the Ministry launched the codification of decrees further regulating the issue. The list of supplementary materials will cease, which will prevent books from being officially registered by the Ministry without previous expert examinations.

1 György Dózsa was a noble man who led a peasant uprising in 1514 but was captured and killed on the orders of other members of the nobility.

2 Over the past years Hungarian society has adopted politically correct expressions, which have on numerous occasions only mocked the real intentions of political correctness. Furthermore, some of these expressions are grammatically incorrect, such as the word ‘etnikum’, which is used for individuals, although the expression itself refers to an ethnic group. It shall be noted that the Minority Act of 1993 officially recognised 13 ethnic groups living in Hungary, Roma being only one of these groups. (translator’s note)

Antal K. and László V.

On 18 January 2000 the victims reported the case to the DP and requested NEKI’s assistance in the case. Attorney Imre Furmann undertook the victims’ legal representation and contacted the police. He was informed that an investigation had been ordered against József J. on count of disorderly conduct. On 2 August 2000 the police terminated the investigation due to lack of crime and no results expected from further investigation. The decision argued that witnesses gave contradictory accounts of the events and their confrontation could not resolve these contradictions. The police found that “no convincing evidence relating to the fact that József J. committed the crime could be obtained. Furthermore, no evidence could be obtained as to whether these persons indeed did act in a disorderly manner, inciting fear and outrage in others”.

The counsel complained against the decision asserting that further evidence should be collected. In its decision of 6 September 2000 the Town Prosecutor rejected the counsel’s complaint, arguing that “proving the facts of the present case seems problematic. Witness testimonies are entirely contradictory and the victims themselves have made contradictory statements in their testimonies. These contradictions may not be resolved, which has reasonably resulted in the termination of the procedure”.

László R.

The client lives in the neighbourhood of a cemetery in a village of Pest County. In August 1999 rats coming from the local-government-owned cemetery infested his house. He requested the local government to take measures on a number of occasions, but to no avail.

As a result of intervention from the parliamentary commissioner for civil rights, the National Health Service inspected the location without previously notifying the client about their visit. Thus, they could not inspect his house. The client went in to the Mayor’s Office to gain information about the inspection. While conversing with the village notary he verbally insulted him and lifted the notary’s desk out of fury. The notary then called the police who beat and insulted the client because of his ethnic origin in front of the office. Several people working for the local government witnessed the incident and unanimously stated that the policemen had not beaten László R. He called the GP and told him the story. Allegedly, the doctor did not recommend that he require a medical statement and opinion taken about his injuries, because “one should not go against the flow”. The client then asked help at the Pulmonology but was rejected, as the ward had no competence in such cases. Thus, László R. did not possess evidence to prove he had been beaten and consequently, investigation into his report was later terminated. His house is still infested with rats, although the local government has promised to have the animals removed.

Gusztáv M.

According to the indictment, at their meeting of 17 August 2000 local councillors of F. village rejected Gusztáv M’s request for an interest-free loan. Following the meeting, the defendant asked the mayor about the decision and started to insult and threaten him. The mayor headed towards his car but the defendant hit his head around his left ear from behind. The defendant alleged that the mayor had insulted his wife when she asked him about the loan in front of his shop. Having just arrived at the scene, he got into an argument with the mayor but denies having beaten him. NEKI will monitor the trial.

* * *

The case of Dénes Pusoma#1 cast the first shadow on the implementation of legal provisions relating to criminal compensation. NEKI provided legal representation to Mr. Pusoma, who had innocently spent 26 months for homicide. In terms of effective legal regulations, individuals not having appealed against the judgement of first instance are not entitled to criminal compensation. Thus, Mr. Pusoma’s claim for compensation was rejected in the first instance. However, the court of second instance threw out the judgement and ordered the court of first instance to restart proceedings. Unfortunately, Mr. Pusoma could not live to see this turn in the proceedings as mainly due to the lack of social assistance for former convicts like himself, he committed suicide.

The case of Géza B.,2# who was awarded 150.000 HUF in non-pecuniary damages for ten months spent in pre-trial detention, also raised a number of issues of concern. The court estimated the cost of Géza B’s right to personal liberty at 15.000 HUF/month, i.e. less than 40 GBP/month. At the same time, the Constitutional Court has long defined the right to life and human dignity as follows: “Dignity is a quality inherent in human life, which is indivisible and unlimited, therefore being equal for every human being. One cannot consider the right of one human being to life without including in this consideration his/her basic right to life and dignity”.#3

Practice contradicting principles and legal declarations has prompted NEKI to launch a research into the issue of criminal compensation, providing legal representation for victims of unlawful detention and miscarriages of justice and to formulate recommendations for the betterment of the situation.

The above cases have formed part of the research, which resulted in the following recommendations.

Under Section 383 sub. 1 of the Code on criminal procedure, compensation may be claimed for pre-trial detention, temporary or compulsory medical treatment, imprisonment, youth correctional education and for compulsory medical treatment. It is of great concern that criminal compensation is not due for arrest, which might last up to 72 hours. It is undisputed that detention lasting less than 72 hours may cause severe pecuniary, as well as moral damages.

Likewise, spending a longer period of time in prison than that stipulated by a merged sentence may also amount to a grave violation of one’s right to personal liberty, e.g. in the case of Lajos S. These claims cannot be brought as an action for criminal compensation, which works to the detriment of victims. In criminal compensation claims plaintiffs are not required to provide the legal ground for their claims. Asserting evidence in support of the quantum of their claims is satisfactory. However, in cases seeking compensation for damages caused in an official capacity, plaintiffs must prove that legal ground exists for their claims, i.e. an unlawful act, damages, a causal link between these two and the defendant’s culpability.

Sándor J.4# could not launch proceedings for criminal compensation because he missed the deadline, which is one year for time spent in pre-trial detention and six months for imprisonment. Our research has demonstrated that these deadlines as presently stipulated, are too short for victims to learn about the possibility of mounting legal proceedings, to retain a legal representative and to launch their claim. We have found that a number of victims complained about the lack of information available to them about these proceedings. Thus, it seems essential to include the obligation of competent authorities to inform detainees and released convicts about their right to criminal compensation amongst relevant provisions.

Our research has highlighted issues concerning the quantum of pecuniary and moral damages. According to present case law, plaintiffs must provide evidence to prove the quantum of their claims for both pecuniary and non-pecuniary damages. We find the latter requirements questionable. The fact that the deprivation of one’s personal liberty results in psychological trauma and damage is a publicly known fact, which therefore should not be specifically proven. Furthermore, the gathering of evidence and the hearing of witnesses in court years after the incident places plaintiffs in awkward situations.

Doubtless, innocent people’s deprivation of personal liberty, regardless of the length of this deprivation results in the violation of human dignity. In its decision No. 64 of 1991 the Constitutional Court has emphasised that “Dignity is a quality inherent in human life, which is indivisible and unlimited, therefore being equal for every human being. The right to equal human dignity in conjunction with the right to life ensures that the law might not differentiate amongst the quality of different human lives. Every person’s right to life and human dignity is inviolable. This holds true for all human beings, independent of their physical and mental development or state, furthermore, of how much they have realised from their abilities and why they have realised that much. One cannot consider the right of one human being to life without including in this consideration his/her basic right to life and dignity”.

Bearing the above in mind, it should not be unrealistic to expect judges to consider the deprivation of personal liberty as a fact meriting moral damages. Naturally, quantum shall be proven in each individual case. However, it shall also be noted that legislative explanations, judicial guidelines and case law do not assist judges in establishing the quantum of moral damages.

1 See, White Booklet 1997–99.

2 See, White Booklet 1998.

3 Constitutional Court decision No. 279 of 1991.

4 For a report on his case see, White Booklet 1999.

Cases taken on by NEKI prior to 2000

P. village

The Balassagyarmat Town court has in the first instance established that (i) the plaintiff’s rights have been violated; (ii) banned the manager of the pub from further violations; and (iii) ordered her to pay 100.000 HUF in public interest fine. Pursuant to an appeal by the defendant, the Nógrád County Court has altered the first instance judgement and (i) established that only plaintiff I’s rights have been violated; (ii) banned the manager from the future violation of plaintiff I’s civil rights; and (iii) withheld the order for the defendant to pay public interest fine. We have not yet received the second instance judgement in writing. Depending on the wording of the written judgement, NEKI will consider an appeal for judicial review to the Supreme Court.

Sz. town

The case is pending before the court of first instance.

Ferenc D.

The Town Court of Veszprém is proceeding in the case mounted for criminal compensation.

Sándor J.

The Budapest City Court has rejected our civil claim for damages. Following consultation with the client, NEKI has not mounted an appeal, therefore the first instance judgement has become legally binding.

Mr. and Mrs. János L.

The police terminated investigation into the clients’ report against security guards.

Krisztián H.

Investigation against the client for violence against a public official was terminated. Likewise, the inquiry against the off-duty policeman was also terminated on count of grave bodily injury. However, investigation on count of disorderly conduct continued against both men. Finally, this procedure has also been terminated.

Ferenc O.

As a result of our correspondence with the Croatian authorities, the Croatian Ministry of Interior has in writing apologised to the client. Regardless of this apology, a Croatian attorney commissioned by the European Roma Rights Centre will mount civil proceedings for the compensation of pecuniary and moral damages. NEKI will monitor the proceedings in Croatia.

Gyula Zs.

Acting on behalf of Gyula Zs., NEKI has filed a lawsuit claiming that the Border Guard Directorate of Ny. violated the client’s civil rights.

Anna R.

The labour court of first instance rejected the client’s claim. On appeal the Budapest City Court found that the district local government unlawfully fired Anna R. and ordered them to reinstate the plaintiff in her original job. The Budapest City Court referred the rest of the claims, i.e. compensation for the loss of earnings, back to the labour court of first instance. Proceedings before the latter court are still under way. The Budapest City Court found that being an employee of a local government and a representative of a local minority self-government are not incompatible with each other.

Lajos B.

The court of first instance rejected the client’s claim. However, on appeal the Budapest City Court threw out the judgement of first instance and ordered the court of first instance to repeat its proceedings. The case is still under way.

E. town

The parliamentary commissioner for national and ethnic minorities launched an inquiry into the case and the local government modified the local decree. However, NEKI submitted a constitutional complaint to stop the local government from executing their ‘loans’ on the heirs of people receiving social support. The case is pending before the Constitutional Court.

Gyula and Tibor Cz.

The case is pending before court.

Zsuzsanna H.

Acting on behalf of the parents, we mounted civil proceedings for damages. The case is pending before court.

Katalin K.

The investigation launched into Katalin K’s report was terminated due to lack of evidence. NEKI complained against the termination but the investigation was terminated again and our second complaint rejected. The clients mounted private prosecution against the person suspected by them. Attorney János Bólyai has been representing the family before court. Proceedings are still under way.

Mrs. József K.

The Budapest City Court ordered the client to move out of her flat. However, the decision-making process took years, during which the client and her family lived in the flat undisturbed. Acting on behalf of the client, attorney János Bólyai submitted to the Supreme Court a request for judicial review and a request for equity to the mayor. The client and her family have remaining in the flat obtained a declaration from neighbours attesting to the fact that since 1994 they have not caused any problems. No decisions have been brought in either review procedures.

Mrs. Zoltán Sz.

The case has not yet been resolved. NEKI continues monitoring proceedings.

András R.

The Town Court of M. found the village notary guilty of defamation and fined him. The court of second instance threw out this judgement and referred the case back to first instance. Meanwhile, the Prosecutor’s Investigation Department launched investigation against both the policeman and András R., because of reasonable suspicion that the latter did not only miss public work but had not been to the police station that day either. The prosecutor has brought charges in this case too. Both proceedings are pending before court.

Attila V.

An investigation was launched against the mayor on count of unlawfully acquiring profit. NEKI has been in contact with the labour centre and Roma local councillors. We are determined to institute legal proceedings, should newly emerging facts so require.

Gyula B.

The court of first instance ordered Gyula B’s probation. On appeal the court of second instance ordered the case to be re-investigated. Proceedings are still pending.

K. town

The County Court ordered the local government of K. to pay damages and interest to the Roma plaintiffs. The case will be tried by the Supreme Court on 15 February 2001.

Anita L.

The defendant has admitted civil liability for the accident but the case continues to be heard concerning the quantum of damages.

Sándor D.

NEKI terminated the contract with the client and stepped down from representation in the case mounted for the compensation of damages caused by the district police. The client violated his contract obligation to co-operate with, provide all information to NEKI and appear before competent authorities.

Dénes Pusoma

The court of second instance threw out the first instance judgement and referred the case back for re-trial. Attorney Elemér Magyar is representing the deceased client’s relatives in the case mounted for criminal compensation.

Jenô# R.

NEKI mounted two civil actions in the case. The Budapest City Court upheld the judgement of the Budapest Central District Court. The Courts established that Cop Magazine’ violated the plaintiffs’ civil rights. They banned the National Police Headquarters, the newspaper’s publisher from future violations and ordered them to pay a total 1.150.000 HUF in damages to the plaintiffs plus 20% interest as calculated from 23 September 1997. The have complied with the order of payment.

In the case concerning the manner of arrest, the Budapest City Court ordered the National Police Headquarters and the Emergency Commando Unit to pay 900.000 HUF in total, plus 20% interest to the plaintiffs. Furthermore, the Budapest City Court ordered the defendants to apologise in writing sent in closed envelopes to each plaintiff. On appeal by the defendants the case is presently pending before the Supreme Court.

Miklós R. and Mihály H.

Following the rejection of our complaint against the decision terminating investigation into the clients’ report, acting on behalf of the clients, NEKI submitted an application to the European Court of Human Rights. As a result of our new domestic complaint, however, the Prosecutor’s Investigation Department continued proceedings and indicted two policemen involved in the incident. They are presently being tried on count of forcible interrogation.

Mr. and Mrs. Kálmán L.

The Pest County Court rejected Kálmán L’s claim for damages caused in an official capacity. On appeal the Supreme Court upheld the first instance judgement.

Molotov cocktail

Following a lengthy first instance trial, the youth setting the clients’ house on fire received sentences on count of disorderly conduct and attempted damage, ranging from imprisonment to probation. After the sentences became legally binding, the clients represented by attorney Lívia Feldmájer mounted an action for damages. The civil court ordered the defendants to pay in total 1.200.000 HUF in damages plus 20% interest as calculated from 15 March 1995. On appeal by the defendants, the Pest County Court upheld the first instance judgement, which became legally binding on 10 October 2000.

B. town

In its judgement of 7 July 2000 the Town Court of Siófok sentenced the off-duty policeman to two years imprisonment suspended for one year and imposed a fine of 60.000 HUF on him. The court ordered his preliminary exemption from the consequences of the conviction. The defendant and his counsel appealed against the first instance judgement. The Somogy County Court rejected their appeal, therefore the first instance judgement became enforceable.

Three applications prepared by NEKI are pending

before the European Court of Human Rights. All concern rights violations perpetrated by the police.

In May 2000 the European Court of Human Rights informed NEKI that the application submitted on behalf of the victims of the so-called Benzidine case (White Booklet 1997, pp.68–72), has been declared ill-founded because the treatment complained of did not, in the Court’s view, reach the level of severity required to invoke protection under Article 3.

Statistics concerning cases taken on by NEKI

About Discrimination

Discrimination

Discrimination is a form of differentiation, which is applied, either intentionally or with no specific intention, to certain groups, or members of those groups. This differentiation is based on an opinion formed about a minority group or social class, and not on a person’s individual characteristics relevant to a particular case or incident. In legal terms, the most common basis on which minorities or social classes may be protected is race, ethnicity, nationality, citizenship, gender, sexual orientation, illness, or social situation.

In the word's most commonly used meaning, discrimination is negative differentiation. Affirmative action aimed at the elimination of already existing disadvantages, or policy based on this notion, is often labelled ‘positive discrimination’ in Hungary. We consider this term misleading because it suggests that a particular group is given more, rather than focusing on the fact that the very object of these measures is to eliminate disadvantages. Therefore, we will use the term affirmative action below, being aware of how this well-wishing differentiation may sometimes have negative consequences.

Facial discrimination

Indirect forms of discrimination

NEKI

I. The Organisation

Guiding principles of operation:

Methods:

We consider the protection of minority rights significant not only because experience shows that an important sign of democracy and social peace in a country is the position of minorities, but also because following the political changeover but still in the phase of economic and social transition, minorities must face such problems which had been hidden in the past and by surfacing, often perplex the majority of society too. NEKI aims at making the conflicts, which have become more apparent over the last couple of years, public and at contributing to the resolution of problems by seeking legal remedy for the victims of violations. Proceeding in cases of violations often results in the revelation of loopholes in domestic law and legal practice.

Often it is not easy to prove discrimination. Those who pass decisions and resolutions tend to refer to the mistakes of the people they exclude. Officials can explain their actions by referring to laws or the lack of regulations, which necessarily result in the irrevocable violation of human dignity and the feeling of defencelessness. In these instances minorities would find themselves in a hopeless situation if they were not supported by NGOs who are aware of their legal rights and also of their specific background, meaning such social conditions that result from a long-term discrimination. By recurring, discrimination, i.e. discrimination in education, removal to settlements situated on the outskirts, the restriction of participation in society, and explicit discrimination by policing agencies, will enlarge the gap between the minority and majority population. This would of course have negative impacts on not only minorities but also the majority of the population.

NEKI was the first NGO in this country setting out to protect the rights of minorities as described. The inception of other human rights NGOs has not, however, made our activities superfluous. The necessity of our work is indicated by growing discrimination in an ever-expanding strata of society and by the need for our strictly legal approach.

In 2000, NEKI’s Office in Budapest has five lawyers and an attorney on the staff supported by attorneys and experts from around the country. The Bureau aims at a more thorough protection of rights not only in professional terms but also in terms of reaching out to more remote parts of this country. Thus, we involve university students, specialists and international lawyers in our activities.

The White Booklet contains only some of the cases taken on. In contrast with the annual report, NEKI deals with a much greater number of cases. We have received more than 700 complaints in the last six years.

NEKI has not changed its aims and methods of operation since the start of its activities. Our strategies have changed since we often experienced that the violation of victims’ rights did not only result from discrimination, it was made worse by procedural failures and loopholes in domestic law. This explains why the Bureau often has recourse to the Constitution and binding international treaties when dealing with a complaint. The common person’s sense of truth, as well as international examples support this choice of strategy.

Still, NEKI is deeply convinced that the protection of minorities is a duty binding on every citizen of this country.

Sponsors in 2000

Ford Foundation: core founding • Soros Foundation in Hungary: core founding • Open Society Institute (OSI): core founding and individual grant for one staff lawyer • Constitutional and Legislative Policy Institute (COLPI) and Soros Foundation in Hungary: research on criminal compensation • European Roma Rights Center: individual grants for legal representation • Soros Foundation in Hungary: earmarked funding relating to a project on discrimination in education • Public foundation for Roma in Hungary: core funding

Donations by Private Individuals: 226.970 HUF

The publication of the White Booklet 2000 was supported by the British Know How Fund

Legal Defence Bureau for National and Ethnic Minorities

Másság (Otherness) Foundation

Address

H-1537, Budapest 114, P.O.Box 453/269

Telephone/Fax

+361 3038973; +361 3144998