2006
2007-09-27 |
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Annual reports of the Parlamentary Comissioner for Natoinal and Ethnic Minority Rights
1 january-31 december 2005
Content
Introduction
Chapter I.
Minority legislation and changes to the local government system
1. Overview of changes to the Minority Act
1.1. Coming into force of the amendment to the Act
1.2. The participation of minority self-government members in local government decision-making
1.3. Legislation on financial management of minority self-governments
1.4. Discontinuation of minority self-governments
2. Assessment of the local minority self-government elections
2.2. Compilation of the minority electoral register
2.4.1. Criteria of the minority nominating organisations
2.4.2. Registration of minority self-government candidates
2.6.2. Organisation of the voting
2.6.4. Conclusions drawn from the participation figures
2.8. Our proposals resulting from the investigation
Chapter II.
The key to achieving minority rights: minority education
1. Circumstances influencing national and ethnic minority education
2. Report on our investigation into the effectiveness of educational integration measures
3. Follow up to one initiative
Chapter III.
2. “Negative sensationalism” – questions of the media’s bias
3. Prejudice spread via the internet
4. The “voice” of minorities in the media – some positive developments
Chapter IV.
Social problems and poverty – through the eyes of the Minority Ombudsman
1. General look at breaches of the constitutional fundamental right to social security
2. Bureaucratic procedures and neglect of the obligation to inform
3. The practical problems of regular social benefits
4. Circumstances endangering the exercise of children’s and parents’ rights
5. Thoughts on the right to housing – based on experiences of specific cases
6.1. The use of settlement planning tools to restrict the rights of those living in slums
6.2. Acceptable ways of eliminating slums
Chapter V.
Our participation in international projects
1. Our international cooperation in the framework of EQUINET
3. Giving an opinion on ECRI policy recommendation no. 10
J/2099
Main tendencies in 2006
In 2006 we received almost 100 fewer complaints. There are two decisive factors which contributed to this. The number of complaints forwarded from central state bodies dropped by almost 30, which can probably be explained by the fact that 2006 was a relatively quiet year in terms of legislation compared to the comprehensive amendment of the Minority and Minority Election Act the previous year.
However, the almost 20% drop in individual complaints had the greatest effect on our figures. In our previous annual report we suggested that the establishment of the Equal Treatment Authority at the start of 2005 was likely to influence our client numbers. The impact was less apparent in the first year, but in the second year it appears that a proportion of complainants sought redress there. It should be noted here that the need to harmonise the legal practice of the two institutions will become increasingly apparent. Although by law, the Equal Treatment Authority, as a public administration body, falls under the scope of the Ombudsman Act, in my view it would make more sense to harmonise legal practice in a cooperative way. The first steps have been taken in this direction, yet the results remain to be seen at this point.
The impact of the amendment to minority legislation in 2005 made itself felt during the time period covered by this annual report. We shall discuss at length our investigation into the election process. There are several reasons why it is worth considering this issue in depth. Firstly, it concerns provisions relating to constitutional rights of major significance, and secondly, the content of fundamental minority legal institutions, which influence the entire minority protection model. I am thinking here, for example, of the right to free declaration of identity, in particular its collective dimension, and the question of ethnic data handling.
Finally, and regrettably, the issue needs to be addressed in detail because our concerns concerning the election rules, which we noted in our 2005 annual report, were largely borne out by the events of 2006.
Based on the results of our investigation, we cannot agree with the election process, or with the “official optimism” concerning the quality of the related legislation. The fact is that the unsuitability of the chosen solution meant that the original aim of eliminating earlier severe abuses of the election system was essentially frustrated, or far from met. We have a legal theory dispute with the central public administration bodes responsible for drafting the relevant rules of law, which, regrettably, despite all our efforts we have been unable to resolve.
One positive development, however, was that in the parliamentary and particularly committee debates (which slipped to the end of the year due to the 2006 general elections) on our 2005 annual report the need for a rethinking of the election legislation without delay was uniformly expressed.
The election occurrences in 2006 led to the national-level minority self-governments abandoning their earlier scepticism towards the election system we support. This scepticism, in fact, could largely be attributed to a lack of appropriate information. Since then we have received a regular stream of complaints regarding the unsuitability of the Election Act to prevent abuses of the system, and we have also had to face the fact that there is effectively no sanction, let alone deterrent, designed to eliminate infringements of the law (for example: making a false nomination declaration).
The other issue discussed at length in this report is a new set up within the Roma education system, called the integration measures package. In this introduction we would simply like to point to some links between schooling and social issues. It is widely accepted that the main obstacle to Roma integration is their lack of qualifications. This explains why I have treated the issue of schooling as one of the key questions during my time as ombudsman. Successive governments have recognised the dangers arising from ever more prevalent school segregation, and have taken numerous measures to promote the educational integration of the Roma population and to surmount their educational disadvantages.
However, it is also widely accepted that the effectiveness of these measures has been very limited. The question is why? In our view one of the main reasons, which has received little attention, is the link to social issues. Even serious initiatives to combat educational problems and the endeavours of a competent and dedicated teaching staff are doomed to failure if we treat the school as a separate problem from the local social reality. School segregation merely mirrors the inner workings of the local society. In reality it is a question not of school segregation, but of local social exclusion. The latter, however, generally does not manifest itself as clearly as the former (although there are exceptions, such as Roma slums). Poor living conditions, all too often evoking the third world, unemployed families, and a local government that is more interested in “straightforward" segregation than "tougher" integration all regenerate the problems. This closes the devil’s circle, from which there is barely any chance of escape without external assistance (from official bodies).
The European Union declared 2007 the year of equal opportunities, so we could hardly find a better occasion to finally combat these severe problems and to substantially improve the effectiveness of the measures taken that are geared towards this aim.
Minority legislation and changes to the local government system
1. Overview of changes to the Minority Act
In this annual report we cannot yet undertake to give a comprehensive picture of the experiences of applying the new regulations. We wish, however, to indicate those failings, which can only be eliminated through further legislation.
1.1. Coming into force of the amendment to the Act
The Constitutional Court has defined it as a constitutional requirement following from the principle of legal security that legislation – including the amendment of rules of law, and putting into force – should occur in rational order, and amendments should be clearly traceable and comprehensible to both legal subjects and bodies applying the law.
This constitutional requirement was not met fully, since the provisions bringing the amendment into force can be interpreted in various ways.
The act was promulgated on 26 October, 2005, and the amendments affecting the tasks and powers of the minority self-governments came into force on 25 November, 2005. It was not clear, however, whether the new legal status rules could also be applied to minority self-governments already in operation. Our experiences indicated that the vast proportion of minority self-governments had not received the amended text of the act within 30 days of its promulgation.
1.2. The participation of minority self-government members in local government decision-making
A fundamental condition of exercising the rights of joint decision-making (right to consent or opinion), is for minority self-governments to have access to the information allowing them to form an opinion. It is therefore necessary for the presidents of minority self-governments to participate in both the open and closed sessions of the given local government representative body and of its committees.
As is apparent from the complaints we received, in some settlements the question of the instances in which the president of the minority self-government could exercise their right of consultation was subject to regular debate.
In our view, the minority self-government delegate may participate in the debate on points on the agenda, including those which are not strictly connected to minority rights. The majority of the questions discussed by the representative body of the local government or its committee necessarily affect the minority community of the settlement, so it is therefore warranted for the minority self-government delegate to participate in the session.
1.3. Legislation on financial management of minority self-governments
By amending the Minority Act, the Parliament authorised the government to regulate by decree:
- he financial management of minority self-governments
- the system of conditions for central budgetary support proportional to tasks performed and rules for accounting how the money has been spent.
According to the Legislation Act, these executive decrees should have been brought into force in parallel with the amendment to the Minority Act. However, by the time of completing this report, there was still no rule of law on reorganisation of the financing system for minority self-governments. Until this is remedied, the practice already criticised in earlier reports remains in place: minority self-governments receive an equal level of budgetary assistance regardless of the size of the community represented and the tasks performed.
In this annual report too we call upon the government to fulfil its legislative obligation as prescribed by Parliament.
1.4. Discontinuation of minority self-governments
The discontinuation of minority self-government can raise several problems of property management.
The legal successor of the discontinued minority self-government is the newly elected and formed minority self-government. Until the legal succession takes place, the entire movable and unmovable property and other property rights of the discontinued local or regional minority self-government enters the temporary management of the local government.
The legislator wished by these means to resolve the problem that the property of the discontinued minority self-government has no owner. The local government may use the property with proprietary solicitude and has the right to collect profits, providing that – with the exception prescribed in the rule of law – it does not sell, mortgage, or further transfer the right of temporary management.
The local government, therefore, is obliged to manage the property, without acquiring ownership rights, whilst there is no guarantee at all that a new minority self-government will be formed to which the property must then be transferred.
Nor is it clear for what purposes the local government may use the property of the terminated minority self-government. In our opinion it is reasonable to expect that the local government should manage the property in a way that promotes minority rights.
In our view the problems outlined above require that the Minister of Justice and Law Enforcement review the effectiveness of the amended provisions of the Minority Act this year.
2. Assessment of the local minority self-government elections
As we did for the 1998 and 2002 elections, we conducted an investigation last year to assess whether the legal provisions guarantee the exercise of the right to representation of minorities, and whether they are able to combat election abuses.
The new legal regulations only allow the right to elect and be elected to those who make a declaration concerning their affiliation to the minority community. In terms of election participation, it was therefore of crucial importance that minority electors be appropriately informed about voluntary registration.
The local election offices had until 31 May to send out the information booklet on the minority self-government elections, with which a form should have been enclosed to request inclusion in the minority electoral register.
As far as we are aware the election offices sent the information booklet to all addressees within the deadline. However some people, thinking it to be advertising, threw away the unaddressed envelopes, without opening them. In several settlements the form to request inclusion in the electoral register was not enclosed, however this omission was rectified immediately once detected.
The National Election Office published the key election information on its website and in the information booklet. The local election offices also had an important role to play in informing electors. However, several minority self-government and civil organisations indicated that they found the measures taken by the notaries to prepare for the elections insufficient.
In some settlements the local election offices were not clear about whether only the original form could be accepted, or whether a photocopy was also admissible.
We requested the opinion of the National Election Office on the complaints we received. The National Election Office issued a circular drawing the attention of the notaries to the fact that the form requesting inclusion in the minority electoral register may be photocopied, or downloaded from the internet.
Despite the failings experienced, it can be said that preparations for the elections were generally in order. However, in future the National Election office needs to pay more attention to preparing the local election offices in advance, and unifying their legal practice.
2.2. Compilation of the minority electoral register
It is the constitutional right of national and ethnic minorities in Hungary to establish minority self-governments in settlements (including the Budapest districts).
In order to ensure the exercise of this fundamental right, the new legislation gives only members of minority communities the right to elect minority self-governments.
In the minority self-government elections those persons can elect and be elected who:
- are affiliated to one of the national or ethnic minorities, and who assume and declare this affiliation to the minority,
- are Hungarian citizens,
- have the right to vote in the local government representative and mayoral elections, and
- are included in the minority electoral register
The minority electoral register defines those persons who have the right to vote. There is a similar register for the local government elections, with the fundamental difference that its establishment and continual management is compulsory independently of the wishes of electors, whilst inclusion in the minority register takes place on a voluntary basis based on request, and the information is recorded temporarily until the final result of the election has been established. Another significant difference is that the local government register of names has to be public to voters, whereas the information included in the minority electoral register is not open.
Voting citizens were able to request inclusion in the electoral register between 1 June and 15 July, 2006, by placing the completed form in one of the special collection boxes or sending it by letter to the notary. Electors were only allowed to request inclusion in one minority register, failing which each request was judged invalid.
The inconsistency of the legislation can be blamed for the fact that whilst in theory only members of the given minority community could request inclusion in the minority electoral register, in practice anybody could acquire the right to participate in the elections by making a formal declaration. The election bodies were unable to investigate the truth of the declaration, so the notaries could not reject the requests, even if it was clear that the given person had no tie to the given minority community.
Numerous minority self-governments and civil organisations indicated that large numbers of electors had been included in the register even in settlements where in reality there is no minority community.
Comparing the statistics released by the National Election Office and the Central Statistical office it emerges that in 122 settlements or Budapest districts, at least 30 electors requested inclusion in the minority electoral register, whereas in the 2001 census three or fewer persons declared affinity to the given nationality. Among these in 50 settlements nobody declared themselves a member of the minority community and nobody reported a linguistic or cultural tie to the minority community.
This does not mean that in every one of these settlements electoral an abuse took place, however the figures make one stop and think even if we take into account that the nationality statistics of the census are not accurate, and it is estimated that just a third of members of minority communities declared their identity.
It can therefore be established that due to the failings of the current regulations it was possible in numerous settlements to compile a register of at least 30 persons – the minimum number for an election to be called - where in fact there was no real community legitimacy. The legal amendment only partly achieved its aim: the legislator did not provide appropriate procedural rules to ensure that only members of the represented community would be successful in requesting inclusion in the electoral register
The rules for compilation of the register also need to be changed because the willingness to register of minority electors was significantly reduced by the fact that they had to assume their identity not in front of a committee consisting of members of the community, but in writing to the notary.
Our experiences indicated that this contributed decisively to the fact that by June 15, 2006, a total of 199,789 minority electors had requested inclusion in the register.[1] In several settlements, where there is a significant minority community, and where until now a minority self-government had functioned, elections could not be called due to the low number of registered electors.
We received several complaints concerning abuses in certain settlements when submitting requests for inclusion in the register.
During our investigation a number of notaries informed us that in their view more people had requested inclusion in the electoral register than the actual number of people belonging to the minority community. They also suspected that the person who had collected and submitted the requests had abused the data of those making the declarations, and had in this way managed to ensure that 30 people were registered so that the election could go ahead.
The rules for inclusion in the electoral register are also objectionable because they did not ensure the transparency of the procedure and the traceability of requests.
We received complaints from several settlements that some request forms allegedly placed in the collection boxes had “disappeared” or not reached the election office.
The notaries were obliged under criminal law to ensure the secure protection of the submitted requests. However, due to the difficulties of proof it is almost impossible to clarify whether the requests had really been placed in the collection boxes and if so, who removed them from there and at what time.
In numerous settlements there were rumours that unauthorised persons were able to gain access to the information contained within the minority electoral register.
In the course of our investigation it was not proven in any case that the information contained within the minority electoral registers went beyond the local election offices. The “secrecy” of the identity of the electors could also not be ensured because those living in the neighbourhood could see who went into the minority self-government polling station on the day of the election.
We can, therefore, establish, that it could by no means be guaranteed that the identity of the minority voters not become public. At the same time, the provisions prohibiting access to the minority electoral register, on the grounds of protecting the right of the individual to self-determination of their own details, prevented the communities from being able to take action against infringements of the collective right to self-governance and self-identity.
The failings experienced made it clear that in its current form the minority electoral register cannot guarantee that only members of the community represented are able to participate in the minority self-government elections.
However, we cannot conclude from the above that introduction of the register was a mistake on the part of the legislator. We are convinced that it is the only means which, following an amendment to the procedural election rules, could combat abuses.
This is supported by the fact that, according to the information given by the national-level self-governments, in several settlements, where previously there had been a “bogus self-government”, those not affiliated to the community did not even attempt the establishment of a minority electoral register, or the minimum number of 30 persons did not register themselves for an election to be called.
Nevertheless, this favourable change was not due to the new legislation providing a sufficient guarantee against abuses, but rather the fact that there were just a few months between the amendment entering into force and the deadline for inclusion in the electoral register. This meant that the failings of the election system did not become widely known, nor how they could be exploited.
In order to put an end to the abuses minority communities also need to be allowed to participate in the process of inclusion in the electoral register. It would also act as a safeguard if electors could only submit their request for inclusion in the minority electoral register in person.
One aim of the legal amendment was that minority self-government elections only go ahead if required by a sufficient number of members of the given community. The legislator allowed elections to be called only in those settlements where at least 30 persons had been included in the electoral register.
The election offices were obliged to make public the number of electors included in the minority electoral register on a weekly basis. In the majority of settlements the minority communities, in knowledge of these figures, were "satisfied" with the minimum of 30 persons. As a result the deletion of just a few electors from the register was able to put the election at risk.
We received complaints from several settlements that electors had not deleted their inclusion in the register voluntarily, and that members of the election office attempted to influence their decision.
The notaries, however, declared that the electors had requested the deletion of their own accord.
These complaints also highlighted the fact that the regulations do not give a clear answer to the question of whether electors can request their deletion from the minority electoral register. According to judicial practice, however, the members of the minority community have the right not only to request their inclusion in the register, but also to initiate its deletion.
This interpretation is in line with the provisions of the Council of Europe’s Framework Convention for the Protection of National Minorities. The framework agreement posits the following: “Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.”
In the interests of legal security, however, it is necessary that this fundamental right not be inferred merely from individual court rulings. Instead, the legislator needs to define clearly the instances of deletion from the minority electoral register.
At the time of drafting the amendment there was agreement that the conditions of candidacy needed to be tightened. According to the original plans, a person who stood as a minority candidate could not undertake the representation of another nationality.
2.4.1. Criteria of the minority nominating organisations
In the 2002 local minority self-government elections around 65% of nominees ran as independent candidates. However as a result of the 2005 amendment only the nominees of minority organisations could run in the elections.
We received numerous complaints concerning the ban on independent candidates.
In our view the involvement of the nominating organisations is necessary until the time comes when it can be guaranteed that only the members of the minority community may exercise active and passive elective rights.
The legislator, in addition to banning independent candidates (albeit temporarily) also excluded the possibility of being able to influence the elections through creating false minority organisations. Only those civil organisations were entitled to put forward a candidate, which had registered the representation of the given majority in their statute at least three years prior to the elections.
As a result of tightening the rules for standing as a candidate, minority organisations in some cases were able to prevent minority self-governments being established in settlements, where members of the community allegedly represented do not actually live.
However, the National Ukrainian Self-Government reported that due to the participation of several false minority nominating organisations, even now several minority self-governments were formed with no real community legitimacy. We received numerous complaints in connection with certain national organisations deliberately supporting candidates not belonging to their own community.
These cases draw attention to the need to rethink the criteria of nominating organisations, and to tighten the conditions for the registration of nominees, as well as to ensure that these can be examined.
2.4.2. Registration of minority self-government candidates
Candidates running in the earlier minority self-government elections did not have to be affiliated to the given nationality, it was sufficient if they “undertook” to represent the minority. The new legislation, by contrast, has made it a requirement that the candidate be included in the minority electoral register and that they register themselves as a member of the community to be represented.
The elector – regardless of domicile – could be nominated in any settlement where minority self-government elections had been called.
The candidate, by completing a form, had to declare that:
- they undertake representation of the minority,
- whether they know the language of the minority community,
- whether they know the culture and traditions of the minority community,
- whether they had earlier been a member or functionary of a minority self-government.
The declaration of the candidate was designed to ensure that only those persons may be minority representatives who possess objective criteria of belonging to the community. The Election Act, however, only prescribed the completion of the declaration and did not oblige the election bodies to check its contents. As a result anybody could become a candidate who had been included in the minority electoral register and who declared that they would undertake to represent the minority.
The majority of the candidates assumed stricter criteria than the election bodies actually demanded. For that reason, many “concealed” the fact that they had earlier represented another minority, or with no basis claimed that they knew the language and culture of the given minority.
One of the fundamental tasks of minority representatives is to ensure the transmission of the minority culture and language. It is evident that it is impossible to fulfil this task properly without actually being in possession of this knowledge. At the time of establishing the minority self-government system, it may have been reasonable to point to the fact that the assimilation policy of the past decades meant that the use of the native tongue within the communities was not widespread. However, from the following minority self-government cycle we think it is justifiable and realistic that only those persons be elected as minority representatives who possess the language skills necessary to carry out their public office. We also regard it as a fundamental requirement that in future only those persons be able to run as minority self-government candidates who earlier have not been the representative of another minority.
The aim of the election campaign is for the candidates and nominating organisations to win the support of voters. Part of this is that voters should have access to information based on which they can make an informed decision about who they want to represent them.
It is clear, therefore, that election campaigns had the potential to play an important part in the minority self-government elections. However, in practice this was made impossible due to the fact that the candidates had no information on those included in the electoral register so they could not establish contact with their potential voters.
Several minority organisations complained that the written and electronic press did not pay sufficient attention to the minority self-government elections. Minority candidates had considerable fewer opportunities to appear in the local media than the candidates for the local government elections.
The fairness of the minority self-government elections requires that the candidates be able to popularise, and introduce their platform and views, and that voters have access to the information required to make an informed decision. For this reason the legislator needs to harmonise the rules for the minority electoral register with the basic principles concerning elections and the provisions for election campaigns.
The local minority self-government elections were held on 1 October 2006, the same day as the local government elections.
Numerous minority organisations objected that their delegates were not allowed to be involved in the work of the vote-counting committees. In some settlements this contributed to the fact that they questioned the credibility of the election results.
The protection of the personal data of the minority voters is an important requirement during the elections. However, the exercise of this right should not be used as a pretext for restricting checks on the organisation of minority self-government elections. We therefore think it necessary that in future minority nominating organisations be allowed to delegate one member each to the vote-counting committees, as is the case for the local government elections.
2.6.2. Organisation of the voting
Several national-level minority self-governments complained that minority voters living in one settlement had to vote at the same place. As a result in the larger cities some voters even had to travel several kilometres. In our view the participation rate would have been much higher if voters could have cast their votes in the polling station closest to their place of residence.
At the time of the legislation being drafted, we indicated that we thought it would be a good idea if voters were assigned to individual constituencies based on their address, and the place of voting decided so that it could be accessed as easily as possible. Our proposal was rejected by the ministry.
We therefore suggest that the legislator establish the rules for establishing constituencies, taking into account the features of minority elections. We advise that the legislator reduce the number of voters needed to create several constituencies, and enable notaries to allocate the place of voting based on local circumstances, and where necessary in different locations in the settlements.
2.6.4. Conclusions drawn from the participation figures
In the 2006 local minority self-government elections 63.81% of those entitled to vote participated. This is higher than the participation rate of 53.12% in the local government elections, yet it was still lower than prior expectations.
It can be presumed that many of those who did not vote were electors not affiliated to the minority community, but who were nevertheless included in the minority electoral register. They registered themselves as an expression of good-feeling or through “persuasion” so that the number of minority voters in the given settlement would reach the minimum of 30 persons.
This is indicated by the fact that in some settlements the participation rate was extraordinarily low. There was even an instance of there being fewer voters than elected representatives.
According to the current legislation, there is no validity hurdle in the minority self-government elections, although the election was only valid if each of the five representatives received at least one vote. However, this vote could be made by the same voter – and even the candidate themselves.
Given the election figures, the question arises of whether a minority self-government elected by just four or five voters can have the necessary community legitimacy.
We think there is a need for legislation which would make the formation of minority self-governments possible only in settlements where both the number of registered voters and of votes confirm that the given community asserts the right to be represented.
We recommend that the legislator consider the possibility of raising the number of electors needed for the elections to go ahead and the minimum number of valid votes for a minority self-government to be formed.
In 2002, 1870 minority self-government elections were held in 1308 settlements, of which 1811 were valid.
In 2006 2049 minority self-government elections were held in 1435 settlements. As a result of these elections 2045 local minority self-governments were formed.
Fewer Polish, Serbian and Slovenian self-governments were formed than in the past. The number of Croatian, Armenian, Romanian and Slovakian bodies rose slightly. Some 11-13% more Roma, Greek and German self-governments were created. The number of Bulgarian bodies increased considerably by 26.6%. The number of Ukrainian self-governments rose by 58.3%, and there was a 67.7% jump in the number of Ruthenian self-governments.
It is worth noting that in 2006 minority self-governments were formed in 119 settlements where according to the data from the 2001 census nobody or fewer than 3 persons declared themselves affiliated to the given nationality or reported their linguistic or cultural tie to the minority. In 74 of these settlements minority representatives were elected for the first time.
The communities or their organisations disputed the legitimacy of numerous Romanian, Ruthenian and Ukrainian self-governments. Their requests for legal redress were rejected, however, by the election bodies on the grounds that the elections had been conducted in accordance with the operative regulations.
In the absence of the necessary legal safeguards, minority self-governments were formed in settlements where members of the community allegedly represented do not even live. In other places only the representatives were affiliated to the nationality, and managed to arrange for an election to go ahead by organising a voter base for themselves. These are not real bodies of self-governance, and it is suspected that they were formed with the aim of financial gain.
Based on the complaints and information we received, we can state that despite the amendment to the legislation numerous abuses took place during the 2006 local minority self-government elections. However, it is not possible to estimate how many bogus minority self-governments may actually have been formed, since the minority electoral registers were not public and even the communities concerned cannot know who in reality elected the representatives.
2.8. Our proposals resulting from the investigation
As a conclusion to our investigation, we asked Parliament to frame and bring into force before the next general elections the necessary legal provisions for ensuring that the constitutional right to establish local minority self-governments is upheld, and the rules for acquiring preferential mandates in the local government elections.
In order for Parliament to fulfil its legislative tasks, we asked the Local Government and Regional Development Minister and the Justice and Law Enforcement Minister to draft the new legal amendment, taking into account the conclusions of our investigation. We suggested that safeguards be drawn up to ensure that:
only the members of the given community be successful in requesting inclusion in the minority electoral register;
the minority communities concerned, via their delegates, should be allowed to participate in the compilation of the minority electoral register;
an objective set of criteria be available for inclusion in the minority electoral register, which would enable well-founded decision-making;
only candidates affiliated to the community represented and who have linguistic and cultural ties to the community be allowed to participate in the minority self-government elections;
minority self-governments only be formed in those settlements, where there is a genuine community desire for representation;
the minority nominating organisations be able to delegate a member to the vote-counting committees;
the fundamental rules for handling the minority electoral register be recorded in law, with particular attention to the instances in which electors may request their deletion from the register;
members of the minority communities – if they have stood in the elections as minority candidates – be able to acquire a mandate in the local government representative body preferentially, with fewer votes.
We also asked the Justice and Law Enforcement Minister to review whether criminal law offers sufficient protection against abuses of the minority self-government elections, and if necessary to draft the amendment of the Criminal Code.
We recommended to the director of the National Election Office that greater attention be paid to preparing the local election offices and unifying their legal practice.
We have not yet received a government response to our proposals. However the National Election Committee in its report assessing the elections wrote the following: “In agreement with the opinion of the Parliamentary Commissioner for National and Ethnic Minority Rights, the committee regards legislation as acceptable in the future which allows minorities to manage their own register.” The Data Protection Ombudsman also indicated that he supports allowing the involvement of minority communities in registering voters, and that candidates be allowed access to the data of those included in the minority electoral register. He also regards the current rules for submitting requests as giving cause for concern.
The key to achieving minority rights: minority education
1. Circumstances influencing national and ethnic minority education
As we have stressed in each of our annual reports, minority education is the key to safeguarding individual and community minority self-identity, and ensuring the survival, fostering and transmission of minority identity. Providing high-standard[2] minority education under the appropriate organisational, financial and staff conditions is the most important public issue concerning minorities.
Minority education, therefore, lies at the root of minority cultural autonomy, yet minority cultural autonomy, which can be achieved by maintaining schools, depends on the allowances granted by the state in connection with establishing and taking over schools.
There was no breakthrough in this field in 2006. As we have already described, the maintainers of schools offering minority teaching are typically local governments: national-level minority self-governments currently maintain a total of just eight schools.[3] It is important to note that this number will increase by one from the 2007/2008 academic year, however, the Ruthenian, Armenian, Romanian, Slovenian and Roma self-governments do not maintain a single school.
As a result of the above we suggest that the set of legal conditions for the transfer of the right to maintain schools offering minority teaching needs to be rethought.
Since the local minority self-governments are presumed to be[4] the maintainers of fewer than ten institutes, the realisation of the joint decision-making procedure partially ensuring minority cultural autonomy has remained a crucial question. As a result – perhaps understandably – we receive the highest number of minority education complaints concerning the rights to consent and opinion. (The education complaints of the Roma minority are fundamentally different, since these complaints primarily relate to segregation.)
Nor has there been significant improvement in the field of national minority teacher training. We wish to draw attention to the fact that teacher training extending to the whole of public education only exists for the German, Slovakian and Croatian languages: only these three minorities have nursery, lower elementary, upper elementary and secondary level teacher training in Hungary. There is no secondary level teacher training in Hungary for the Romanian nationality. The Serbian nationality lacks nursery level and upper elementary teacher training in Hungary, and the Ukrainian and Slovenian nationalities lack nursery level and lower elementary teacher training. The Bulgarian, Polish and Greek nationalities only have secondary level teacher training; and there is no teacher training at any level for the Armenian, Ruthenian and Roma[5] language areas.
As a result of the above we think greater state funding than at present needs to be allotted for participation in national minority teacher training.
The construction for textbook support changed last year[6]. The local governments order minority textbooks as permanent textbooks and the central budget refunds the price retrospectively. The schools receive the books for three years (with a ten per cent increase and extra sets of books for those taking the secondary leaving exam and give them free of charge to pupils. (Parents can buy work books and exercise books at a preferential price.)
We must draw attention to the fact that – despite the considerable efforts of the Education and Culture Ministry – the textbook supply for minorities in Hungary is extremely lacking. Even German bi-lingual education, which is in a relatively good situation, lacks fundamental books: for example, there is no German nationality language text book for years 9-12, so it has to be replaced by German foreign language books. In the secondary school years, there is also no German nationality literature textbook, only an anthology and reader.
Despite the lack of minority text books, we do not regard section 24 (3) of the Education Ministry decree 23/2004 on the rules for officially acknowledged textbooks, textbook support and supplying schools with textbooks as an adequate solution, since it makes it possible for books included in the register of supplementary books to be used in national and ethnic minority education without the safeguard rules of the official acknowledgment procedure for textbooks without even stressing that this is a temporary measure and without the necessary regulations.
The lack of minority textbooks is largely due to the lack of authorial capacity, and since it is practising teachers who could write such books, we propose support for contracting teams of writers and allowing sabbatical periods.
We regard it as very positive that the Education and Culture Ministry amended the 13/2006. (III. 31.) OM decree on the rules for claiming, making payable and accounting for supplementary support for national minority teaching tasks to set a new deadline for claiming support after 44% of the entitled maintainers of minority institutions failed to submit their application within the deadline.
One school head asked for our opinion on a theoretical question, in connection with which the need arose to amend the 32/1997. (XI. 5.) MKM decree on publication of the directive on national and ethnic minority nursing education and the directive on nation and ethnic minority school education teaching (hereinafter: directive). Since this rule of law contains the most important rules for minority education, we shall discuss it in detail below.
In the view of the director, since national minority teaching may take place with pupils from several years and classes, there is no obstacle to introducing it at the same time for pupils from all years – and the school applied for the supplementary state grant on the basis of this legal interpretation. (The director consulted us on this question.)
The competent regional directorate of the Hungarian State Treasury (hereinafter: MÁK) found the 2005 accounts of the local government concerned unlawful. For according to the cited rules of law[7] the teaching of minority language and literature, and minority culture has to be phased in from the first class[8].
In our view the lexical interpretation of the State Treasury is correct, however it does not stand up to systemic interpretation: the sections of the directive cited by the State Treasury are inconsistent with section 67 (2) of the Constitution, the second sentence of section 8 (2), with sections 13 (1) and 51 (1) and section 121 (1) point 10 of the Public Education Act, because they violate the right of the parent to choose the education of their child, and without reason restrict the right to teaching of national and ethnic minority native languages, and in violation of the Legislation Act narrow the concept of the phasing in system. The contradiction can only be resolved by amending the directive.
The Hungarian Constitution, among fundamental rights and obligations, gives parents the right to choose the education given to their children, and states that the Hungarian Republic allows the right to national and ethnic minority to teaching in the native language (and within this to teaching of the native language). Section 8(2) declares that the essential content of fundamental rights may not be restricted by a rule of law.
According to the final phrase of section 13 (1) of the Public Education Act – coming under the choice of education – parents have the right to choose a nursery, school or student accommodation for their child according to their national or ethnic minority affiliation.
The Minority Act recognises the native language of minorities as a factor that binds the community together. Sections 43 (3) and (4) of the Minority Act tie introduction of minority teaching in the native language and of the native language to three conditions: the minority education must be viable locally, there must be a concrete demand for it, and it must be possible to arrange the school class based on the provisions of the Public Education Act.
Unfortunately the rules of law do not define what is meant by the phrase “viable locally”. According to our interpretation, a school class has to be arranged for members of the national and ethnic minority if a “normal” class can be created from (at least) eight pupils from the same year group or a class merged from at least eight pupils belonging to different year groups (which as a general rule means pupils from different age groups).
It is less evident, but in the absence of any rule prohibiting it, we also regard it as conceivable that the local government as maintainer – at the request of parents and based on its own judgement – may organise minority education even if not obliged to form a class, or if a class can not be established based on the Public Education Act: if there is a suitable teaching programme we also think it is possible to organise a school group complying with the content requirements of minority education. The Public Education Act enables a wide sphere of differentiation, makes possible project teaching and also allows study requirements to be fulfilled in an academic year or in a shorter time than prescribed. In conclusion, even a significant age difference between pupils need not exclude the realisation of minority teaching.
However, based on the joint interpretation of the directive and the National Basic Syllabus Act minority teaching may be introduced (phased in) from the first year/class. It follows from this that:
the creation of a class composed of pupils belonging to several years is only possible if the pupils of the years concerned have participated in the minority education from the first class;
group teaching is only permitted within the same year group, if the pupils of the year groups/forms concerned have participated in the minority education from the first class.
Nor does the directive comply with the ( pedagogically justified) rules of the Public Education Act concerning phasing in: it is only possible to introduce and modify pedagogical programmes - as generally is the case for changes to study and examination requirements according to section 51 (1) of the Public Education Act – from the academic year following the approval and with phasing in, but the expression “lowest school year group concerned” here refers not to the first class but to the year group specifically affected by the change.
The directive, by making it exclusively possible to start a class operating according to the minority teaching programme from the first year, excludes the parents of children in years above the first class from exercising their right to choice of minority teaching. In addition it impedes the exercise of the right to national and ethnic minority native language teaching of pupils in year groups higher than the first class.
It is worth noting that the directive would also not comply with the necessity/proportionality test developed by the Constitutional Court, since pedagogically it unnecessarily (entirely without reason) restricts the achievement of minority teaching aims.
Last but not least it is worth pointing out that the content of the directive also raises the risk of direct discrimination.
We established that a constitutional irregularity was also caused by the fact that compared to the regulations recorded in law, the directive gave a narrow definition to the concept of the lowest school class concerned”[9] .
In the light of the above we turned to the Education and Culture Minister with legislative proposals that the 32/1997. (XI. 5.) MKM decree be amended so that the phasing in of minority education become possible in the lowest classes concerned, and that the content requirements (language levels) be defined accordingly.
We also proposed that the Education and Culture Minister initiate either the annulment of the “viable locally” expression in section 43 (3) of the Minority Act, which is not interpreted, or clarify its definition with an explanatory provision.
In order that the constitutional right to legal security be upheld – to avoid other similar cases to the concrete case in hand – we also proposed that the minister, in discussion with the Hungarian State Treasury and the National Audit Office inform those applying the law, particularly local governments maintaining schools, of the conditions of the obligation to organise and maintain minority nursery groups and school classes, the relation of these to one another and whether minority education can be introduced in several year groups at the same time (if the pedagogical programme ensures that the phasing in system is implemented).
The minister, when consulted by us, stressed that the right to native language teaching can only fully upheld if the conditions of such are ensured from the outset.
That cannot be doubted, yet it is not an appropriate argument in favour of minority education being introduced exclusively from the first year group/class since firstly there are other legal conditions for whether minority classes may be organised apart from the wishes of the parent, and secondly the right to choose minority education may not be restricted to one age group because of the public education system.
At the same time the minister acknowledged that the lowest year group concerned does not necessarily have to be understood as the first year. The ministry will discuss the proposal firstly with the National Minority Committee, and then with national-level minority self-governments. If they agree the amendment of the decree will be set in motion. Those talks had not come to an end at the time of writing the annual report.
2. Report on our investigation into the effectiveness of educational integration measures
The aim of the investigation
In the twelve years since our office was established, we have always attached particular importance to the issue of education, as proven by the several comprehensive investigations we have carried out – in the areas
lap tetejére
