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Appendix to Report Nr. 3381-1/2006
Report
(July 2006)
I. Foundation, management and organisation of the Authority
Act Nr. 125 of 2003 on equal treatment and the promotion of equal opportunities (hereafter: Equal Treatment Act) entered into force on 27 January 2004. The act fulfilled a number of regulatory obligations laid down in EU directives, among others those contained in 2000/43/EC on the implementation of the principle of equal treatment of persons regardless of their ethnic or racial affiliation (hereafter: racial directive) and 2000/78/EC on the creation of a general framework for equal treatment in employment and labour (hereafter: employment directive). Article 13 of the racial directive, which obliges member states to create a national organisation carrying our independent investigations in the defence of personal rights, was implemented by Hungary through the establishment of the tasks and the guarantees of the independence of this national authority in the Equal Treatment Act. Accordingly, the Authority cannot be instructed in issues of its competence specified by the Act, it is a budgetary organisation with chapter rights, its budget forms a separate entry within the chapter of the Prime Minister’s Office (PMO), and is under the direction of the Government and the supervision of the designated minister. The Act also specified the tasks of the Advisory Board, which is made up of members nominated by the Prime Minister, although the detailed regulations governing the activities of the Board are contained not by the Act, but the executive decree. Since at the time of the drafting of the Act there was no consensus regarding the further details of its legal status, the Act authorized the Government to work out the detailed regulations governing the activities of the Authority.
The Hungarian Government adopted Governmental Decree Nr. 362/2004 (XII. 26.) on the Equal Treatment Authority and the detailed regulation of its procedures (hereafter: Decree) in December 2004, since the regulations of the Equal Treatment Act regarding the Authority were to enter into force on 1 January 2005.
According to the Decree, the implementation of the requirement of equal treatment is supervised by the Equal Treatment Authority, a body with national jurisdiction, which started its work on 1 February 2005. The Authority is directed by the Government and supervised by the minister responsible for issues of equal opportunity (during the period of this report the Minister of Youth, Family and Social Issues and Equal Opportunity, MYFSEO), its president and the members of the Advisory Board are appointed or nominated by the Prime Minister.
The president of the Authority was appointed by the Prime Minister on 26 January 2005, while the Advisory Board was set up – after consultation with civil society organisations – in June 2005.
According to the Equal Treatment Act, with regard to its budgetary legal status, the Authority forms a separate entry in the budgetary chapter of the Ministry for Youth, Family and Social Issues and Equal Opportunities, its chapter rights, however, ceased in June 2005, when Sec. 65 of Act Nr. 26 of 2005, which modified a number of tax laws, entered into force.
The number of public servants and employees on payroll of the Authority in 2005 was 17. These were filled up gradually in two steps during the year. The vice president of the Authority was appointed by the president on 1 July 2005. The Authority made an agreement with the Prime Minister’s Office to carry out some of the functional tasks (human resource management, payroll calculation).
Management of appropriations:
The Government approved of 147.7 million HUF for the operation of the Authority in 2005. The financial sources for the foundation and operation were to be secured by the Prime Minister’s Office (25 million HUF) and the Ministry of Equal Opportunities (122.7 million HUF) from their appropriations classified in chapters.
Due to the contradictions in the relevant legal regulations, the conditions for independent management (appropriations within the competence of the Authority, availability of appropriations, etc.) were created only in March, although the Authority started its professional work already on 1 February. In this transitional period the basic infrastructure necessary for the operation of the institution was provided by the MYFSEO, the expenses of which were included in the reallocated appropriations (11.6 million HUF)
From the 122.7 million HUF to be provided by the MYFSEO for the maintenance of the Authority in 2005 12.7 million HUF was blocked in accordance with to Sec. 51 of the Budgetary Act as part of appropriations forming a reserve in order to secure budgetary balance. This means that the MYFSEO reduced the amount of the sources to be given to the Authority with this amount. Consequently, the real sum provided by the MYFSEO to launch the Authority was 98.4 million HUF.
The reallocations within institutional competence had the following reasons:
The Authority started its work in the building of the Ministry of Economy and Transport, in 6 Vigadó Str, in 15 rooms of the building operated by the Ministry, in an area of 379 sq.m., which, however, was sold by the Treasury Property Directorate in July 2005.
In the second half of 2005 – since we had to calculate with a market-level office rent – we needed an extremely prudential financial management, and had to postpone material and investment expenditures to a later time in order to be able to cover the extra costs connected to moving. By the end of the year, however, we had the opportunity to find a place in the building of the Ministry of Economy and Transport on Margit krt. with favourable payment conditions. This created an opportunity to realize the postponed – although professionally justified – investment claims. Consequently, 4 million HUF was reallocated within institutional competence from material expenditures to the priority appropriations of institutional investments.
We received 10 million HUF from the approved residue of the MYFSEO from 2004 in December 2005, which was used to cover the expenses of the renovations in connection with the moving, furthermore to purchase IT equipment, office supplies, furniture and other inventory items.
The number of public servants and employees on payroll in 2005 was 17, 11 of whom carried out our primary activities, 3 administrative and secretarial activities, 2 worked in management, and one person worked as a driver. All executive officers and public servants have degrees from higher education institutions (all in law except for one), seven have passed their bar exams, and three qualify as apprentices in terms of obtaining the professional practice prescribed for the bar exam. More than half of our colleagues speak 1-4 foreign languages, and the average age is 43 years.
A number of functional task are delegated to external providers by the Authority through agreements or contracts. Human resource management, IT and central payroll calculation tasks were carried out in 2005 and 2006 by the Prime Minister’s Office, public procurement, accountancy and driving tasks by external providers.
II. Professional activities of the Authority
The Equal Treatment Act entered into force on 27 January 2004. This regulation is not without precedents in Hungarian law. In accordance with the articles of the Constitution protecting human dignity, prohibiting discrimination on any grounds and defining the responsibility of the state in relation to them, a number of acts before the Equal Treatment Act contained regulations ensuring the possibility to fight discrimination. These regulations, however, lacked a unified terminology and did not provide ample means to address such infringements, consequently it became necessary to create a general antidiscrimination law, which made the already existing regulations consistent, created a uniform terminology, filled the legal holes in the already existing regulations, created the appropriate procedural regulations and provided sanctions to remedy the infringements.
At the same time the Equal Treatment Act entered into force, 26 sectorial laws were modified or amended with the requirement of equal treatment.
The Act prescribes obligations for a wide range of actors, and requires them to refrain from all behaviours that would discriminate against persons or groups of persons on the grounds of certain characteristics. The obligors must not violate the human dignity of others. This requirement is prescribed by the Act for everyone in general.
Competence and tasks of the Authority
The Equal Treatment Authority is an antidiscrimination organization which, according to the Equal Treatment Act,
The primary tasks of the Authority are tasks in official capacity, furthermore it has organisational, informational, and economic duties, and in connection with legal regulations it acts as an advisor.
Tasks in official capacity:
In the case of the infringement of the requirement of equal treatment, the Authority carries out administrative proceedings at the request of the infringed party or, in certain cases defined by law, ex officio, in order to establish whether an act of discrimination was committed. If it is established during the proceeding that the requirement of equal treatment was infringed, the Authority applies the sanctions defined by law in its administrative decision.
The Act establishes which party has to demonstrate what during the proceedings initiated because of the infringement of the requirement of equal treatment. The infringed party has to indicate in its claim what disadvantage they had to suffer in what legal relationship, and whether they had a protected characteristics defined in the Act at the time of the infringement. (E.g. they were not allowed to enter a public event or were not employed because of their disability, Romani origin, age or any other characteristics listed in the Equal Treatment Act.)
During the administrative proceeding, the person or organisation under investigation must demonstrate that they observed the requirement of equal treatment, or were not obliged to observe it in connection with the given legal relationship. Furthermore, according to the regulations of Act Nr. 140 of 2004 on administrative procedures and services (hereafter: Administrative Procedures Act), the Authority is obliged to do everything to establish the facts of the case.
In 2005, 491 claims were filed to the Authority, in the first half of 2006 already 475! The numbers indicate that with the increase of the reputation of the Authority, the number of cases will double in 2006. Most claims are connected to the employment of Romani people, and the employment and lay-off of women over 50, women with children and disabled people. Numerous claims were filed in connection with education, the segregation of, and use of individualized schedule for, disadvantaged students. Denial of services in the establishments of the commercial and catering industries affect almost exclusively the members of the Romani minority, while access to other services is denied to disabled people.
It is notable that in many cases the Authority was contacted on the phone, in person or – in an increasing number of cases – via email because of discrimination, but later on the claimants did not continue the proceedings or withdrew their claims. In a number of cases we could not initiate proceedings because the claimant wanted to keep their names or position secret, which the Authority, either because of the nature of the case or the deficiencies of legal regulations, could not guarantee.
The law authorizes the Authority only in few cases to initiate proceedings ex officio. Proceedings can be initiated only if the infringement has already occurred, which the claimant must demonstrate, and it does not allow civil organisations to initiate proceedings in front of the Authority in defence of specific groups as a public interest claim.
The Equal Treatment Act gives narrow competence to our organisation to investigate the implementation of the requirement of equal treatment between private actors. The number of cases that had to be dismissed on this ground, e.g. legal relations in a condominium, trespass dispute, or family law cases, is rather high. Employment is the only area, where a proceeding may be initiated because of the infringement of the requirement of equal treatment regardless of the nature of the legal relationship.
In 2005, the
Authority transferred 45 cases to other public bodies with
competence, in 212 cases the claimant was informed in a letter
about the sphere of activities of the Authority, the definition of
discrimination, and other possibilities for legal remedy. In many
cases, namely, the claimants turned to the Authority not with
complaints about discrimination, but filed a complaint about the
decision of another agency or court.
The distribution of the 18 cases according to the
protected characteristics of the claimants:
In five cases of the damning decisions a fine was imposed (sums between 450,000 and 700,000 HUF), in five cases the decisions was published, while in the rest of the cases the offenders were ordered to terminate the infringement and refrain from further infringements in the future. (In some cases more than one sanction may be imposed.)
During the investigations – acting in accordance with the powers provided by law – the Authority tried to reach an agreement between the parties when justified. In 2005 6, in the first half of 2006 already 5 cases ended with an agreement. The observation of the content of the agreement by the parties is supervised by the Authority.
The Administrative Procedures Act, which entered into force on 1 November 2005, enabled the Authority to end proceedings with an order. In 2005 in 26 cases the proceedings were terminated because the claimant failed to comply with the request of the Authority to correct the deficiencies of the claim or did not make a statement on the merits, and the legal conditions of carrying out an investigation ex officio were lacking. In some cases carrying out an administrative investigation was hindered by the fact that the claimant filed a case to the court as well on the same legal grounds. If, namely, the court establishes its jurisdiction or the lack of it in a specific case, or reaches a decision on the merits in the case, that decision is binding for the Authority as well, and its own decision on the merits is annulled. In these cases the Authority – if it ascertained that in the given case a court had already established its jurisdiction – dismisses the claim without an investigation on the merits or, if it has already started the investigation, terminates the proceeding.
In 2005 the Authority reached a decision to dismiss the claim in 103 cases. In most cases the reason for dismissal was the lack of competence on the part of the Authority. The high number of such decisions suggests that conscious, targeted dissemination of information is needed about the definition of discrimination and the means of efficient vindication of rights, which could contribute to the elimination of prejudices and to consciousness raising. It has to be noted, however, that in most cases the Authority either sent a note to various other public bodies or offered other, specific help to the clients (e.g. provided help accommodate homeless people and clarify their cases).
Peculiarities of the proceedings
In accordance with the Decree, if the claimant’s place of residence is not in the same municipality as the headquarters of the Authority, if a personal hearing is necessary during the proceedings, the claimant is summoned to the mayor’s office of their place of residence. The same rule applies to the situation when the Authority holds a hearing. Then the persons to be heard are summoned to the mayor’s office of the claimant’s place of residence. As a consequence of this rule, the Authority organized hearings in the investigated cases 23 times outside of Budapest, from Szabolcs-Szatmár-Bereg County to Vas County.
Should the implementation of the above rules pose unproportionately great difficulties or cause a delay of the proceedings, the Authority may summon the persons to be heard to its own offices and bear the costs connected to their attendance. In these cases, and in those where the claimant’s place of residence was the capital or its agglomeration, the Authority held hearings in its office 85 times. A significant portion of the claims arrived from Borsod-Abaúj-Zemplén and Pest Counties.
Demonstration of discrimination
Art. 8, Sub. 1 of the racial directive and Art. 10 of the employment directive prescribe for member states to legislate on the shift of the burden of proof.
The rules of demonstration in the proceedings of the Authority investigating the infringement of the requirement of equal treatment are regulated by the Administrative Procedures Act, the Equal Treatment Act and the Decree.
Pursuant to Sec. 3, Sub. 2, point b of the Administrative Procedures Act, the Authority establishes the facts ex officio, determines the rules and extent of demonstration, during which it is not bound by the motions of the clients for demonstration, but must consider every aspect important for the case during the establishment of the facts. Pursuant to Sec. 19 of the Equal Treatment Act, the claimant must demonstrate that they suffered a disadvantage and that they had in fact or according to the assumption of the offender one of the protected characteristics listed in Sec. 8. The respondent must demonstrate that they observed the requirement of equal treatment or that they did not have to with regard to the given legal relationship. At the same time, Sec. 50 of the Administrative Procedures Act obliges the Authority to fully establish the facts needed for a decision, to present the evidence of the case, and also lists the most important means of demonstration. The latter are complemented by testing in accordance with the Decree. Demonstration is comprised partly of the establishment of facts, partly of contrasting all the circumstances of a case with the abstract legal regulation and through these the formation of deductions necessary for a decision on the merits. The complexity of the assessment is indicated by the fact that the various discriminative acts (direct or indirect discrimination, harassment, unlawful segregation, retaliation) have to be assessed according to different criteria, since in the specific cases the person(s) under investigation may invoke different reasons for exemption, the acceptability of which has to be evaluated by the Authority.
According to our experiences, it is usually easy to clear the nature of the injury on the basis of the claims. In most cases this is already enough to decide whether the case falls under the temporal, personal or material scope of the Equal Treatment Act, and whether the Authority has competence to proceed. A claim is dismissed without an investigation on the merits if the subject of the complaint is a trespass dispute, a legal dispute in a condominium, a disagreement between colleagues or family members, or if there is a pending or closed court proceeding or an investigation by the prosecutor’s office or by a parliamentary commissioner in the case. If it can be established that the claim is in the competence of the another public body, and there is no reference in the claim to discrimination (calculation of pension, payment of family allowance, assertion of compensation claims), the Authority transfers the case to the public administration body that has competence and jurisdiction, and informs the claimant about this. In the same phase of the proceeding the Authority also establishes whether the basis of the distinction or injury reported in the claim is not a legal regulation. This may be a regulation that prescribes affirmative action (employment of people with diminished work capacity), or creates an opportunity for alternative regulation (establishment of the conditions of public hearth care by local councils), or prescribes the allegedly injurious action by law (in case of outsourced business operations the termination of certain employee benefits, e.g. discounted ticket prices). These cases were also dismissed without investigation on the merits, with the information that anyone may request the subsequent control of the constitutionality of all legal regulations from the Constitutional Court.
Another task of the Authority before initiating a proceeding is to clear whether the injured party of the case falls under the scope of the regulations of the Equal Treatment Act. Unfortunately, this is often impossible to establish from the claim, consequently the claimant has to be requested to submit a correction of deficiencies and indicate in the claim which of the 19 protected characteristics they have, or any other circumstance, feature or characteristics in connection with their person. With regard to other circumstances, the Authority accepts as such the situation when an employee, who had been reinstated in their original position according to the decision of the Labour Court is discriminated against in connection with further education, or when an institution of a local council denies in a discriminative way the advocacy group of prostitutes to rent a room in order to organize a press conference there about a tender they had won.
If the claimant cannot make a statement about the protected characteristics, or the correction of the claim is unsuccessful, the Authority terminates the proceedings in lack of protected characteristics, consequently of competence.
The demonstration of the exemption of the respondent can
only be carried out if the Authority has established in the
above-described ways the existence of protected characteristics and
injury. It is a great challenge for the Authority to interpret
correctly the respondent’s arguments during the demonstration
of exemption.
Forms of discrimination
In cases of direct discrimination, the respondent has to demonstrate that they did not discriminate against the claimant compared to other persons or groups in the same situation except for the protected characteristics (i.e. they observed the requirement of equal treatment), or the protected characteristics of the claimant, e.g. ethnic affiliation or age, were not connected to the disadvantage they suffered. Furthermore, they may demonstrate that they were not obliged to observe the requirement of equal treatment by invoking a legal regulation allowing or prescribing unequal treatment, or give a reasonable cause for their provisions.
In cases of indirect discrimination, a seemingly neutral provision places a disproportionately larger disadvantage on persons or groups with protected characteristics compared with other persons or groups in a similar situation. In these cases the respondent is exempt if they demonstrate not the lack of connection between the protected characteristics and the injury, but the fact that their provisions did not place disproportionately large disadvantage on persons or groups with protected characteristics compared to other persons or groups in a similar situation. (E.g. cutbacks serving the greater efficiency of a company did not affect to a significantly greater extent the members of an employee group with protected characteristics, or that there is a need for employees with better qualifications or greater professional experience for a new task.)
In the case of both forms of discrimination it has a great significance that the Authority correctly assessed the persons or groups in a similar situation to that of the claimant, or choose appropriately the persons or groups in a similar situation, compared to whom those with protected characteristics have suffered a disproportionately large disadvantage.
Based on the practice that has emerged so far, the groups that serve for comparison must be found among those within the respondent’s possible reach, since the demonstration of exemption can be expected only in this range. During the proceedings those cases raise the most complicated questions, where due to the resolutions of local councils groups with protected characteristics (usually the Romani minority) suffer greater disadvantage than those who are not the members of these groups.
The solution of certain problems of implementation, which codification could not take into account, is up to the Authority and the labour and civil courts proceeding in cases of the infringement of the requirement of equal treatment. It is an important theoretical and practical issue, for example, what the limits of the autonomy of local councils are, and whether the observation of the requirement of equal treatment poses such a limit.
In cases of direct discrimination, the Authority – after having decided with which group to compare the situation of the injured party – often employs a statistical method. Here it is worth to touch upon the investigation of complaints in connection with group lay-offs. In these cases the respondent has the best chance to demonstrate that they had observed the requirement of equal treatment, that is, that there is no connection between the protected characteristics and the provision of the employer injurious for a group of employees. Since the economic reasonability of cutbacks is not investigated by the Authority, the issue of proportionality has a great role. The question is whether the employer’s provisions affect employees with protected characteristics to a greater extent and whether that had a reasonable cause. A comparison of the ratio of employees in terms of e.g. age or sex before and after the lay-off may provide the grounds – in lack of a reasonable cause – for a damning decision by the Authority.
With regard to the establishment of facts in proceedings initiated because of the infringement of the requirement of equal treatment knowledge of sensitive data connected with or relevant for the protected characteristics listed in the Act is indispensable. Sec. 17, Sub. 4 of the Administrative Procedures Act allows the gathering and management of personal information only in cases defined by law, and presently the Equal Treatment Act does not contain such an authorisation. Obviously, in the case of the claimants, Sec. 3 Sub 6 of Act Nr. 63 of 1992 on the protection of personal data and the publicity of data of public interest is in effect, which means it is assumed that the claimant agreed to the management of the their data. In the case of indirect discrimination, however, when – as we have seen above – similar data of others is needed to form a group for comparison, this lack of regulation is a factor hindering the demonstration of the infringement.
In cases initiated because of harassment the respondent has to demonstrate that the aim or effect of their conduct was not to create a hostile, humiliating or intimidating environment against the person with protected characteristics. In reality the task of the Authority is to collect evidence, documents or testimonies with the help of which the fact of harassment can be substantiated against the respondent’s denial. Here we have to draw attention to a deficiency of regulation with which the Authority is usually confronted when investigating cases of sexual harassment. The legal definition of harassment currently in effect makes almost completely impossible a successful proceeding in such cases. Primarily not because it does not establish the clear definition of the elements of this special form of harassment, that has not kept the Authority from initiating proceedings. Directive Nr. 2002/72/EC of the European Parliament and the Council contains a more exact definition by stating that sexual harassment may be committed verbally or physically, and a humiliating and offensive environment is only an exemplary condition, that is, it establishes the elements of the behaviour constituting harassment with an exemplary list. Furthermore, it also establishes that the fact whether a person refuses or endures such a behaviour cannot be used as the basis of the decision regarding the given person (Sec. 2, Sub. 5). Consequently, it provides a broader margin for implementation than the Hungarian regulations. What poses a real difficulty in such cases is that the scope of the act on the part of the obligors covers only organisations, which means that the Authority carries out a proceeding not against the harasser in person, but – for example in the most frequent cases of school or workplace harassment – the leader of the given institution or business association with employer rights. Sometimes, however, especially because of the intimidating environment, those injured do not have access to those against whom the proceedings should be initiated. Today there are no legal regulations prescribing or encouraging employers to take measures for the elimination of sexual harassment. While it is true that according to the Directive these regulations have to be created in accordance with national legal regulations and practices, unfortunately they do not exist yet. While making the code of conduct of cases enforcing the requirement of equal treatment a compulsory element of equality policies in the next amendment of the Equal Treatment Act would be a step forward, it would not be satisfactory according to the Authority (since it would not be obligatory for all employers). Here it has to be noted that if the employer under investigation is not the real harasser, it is questionable in what quality the Authority may question the person committing the harassment. It is obvious that they cannot be expected to be unbiased; consequently, if they participate in the proceeding as a witness, their statements cannot be accepted as impartial.
In the investigation of unlawful segregation the Authority does not have yet an entrenched practice. It can be already stated that this serious social problem, which mainly affects the Romani minority especially in the areas of education and housing, can hardly be handled with administrative means. Certain proceedings may have the effect that they repeatedly revel the responsibility of decision-makers (maintainers, institution leaders or, for that matter, legislators). During the investigation of segregation in education it is always necessary to draw in a specialist educational organisation, and in the case of establishing the infringement to determine realistic deadlines and conditions after the assessment of numerous factors. There is no entrenched practice of implementation regarding what may be accepted as reasonable cause after objective deliberation, on the basis of which the respondent – mostly a budgetary organisation or a local government – may be exempted. Segregation in education is maintained by segregation in settlement patterns, and its survival is secured by the free choice of school.
The fifth form of discrimination is retaliation, which has not been investigated yet. Pursuant to Sec. 10, Sub. 3 of the Equal Treatment Act, a behaviour that causes, intends or threatens to cause, legal injury to a person who filed a claim because of the infringement of the requirement of equal treatment, qualifies as retaliation.
Court cases:
The Authority cannot be instructed in specific cases, its decisions can be overruled only by a court, its resolutions can be appealed against at the Metropolitan Court, which has exclusive jurisdiction. During the period of this report, a party appealed against the decision on the merits in 18 cases, some of the trials are still pending. In eight cases the court review has already ended, in six of these cases the appeal was dismissed, in one case it ordered the initiation of a new proceeding, and in another case the decision of the Authority was annulled. The fact that beside the two above-mentioned cases the decisions that had been appealed against were confirmed by the review is a good sign that we are on the right track regarding the implementation of the Act.
The Authority used the power to interfere in a court case only once. In a case filed against the local council of Jászladány because of segregation in the school run by the local council the Authority acted as an independent intervener, but in order to help the county administrative office win the case. The court, however, dismissed its motion for demonstration and the claim of the administrative office.
Other administrative cases:
Since 1 November 2005, as a new task the Authority has issued official certificates for the accreditation of employers wishing to employ people with diminished work capacity certifying that during half-year preceding the application the Authority had not established their infringement of the requirement of equal treatment in employment. This is certified by the Authority with an administrative certificate. Until the end of the year we issues 250 certificates.
Pursuant to the new regulations of Sec. 15 of Act Nr. 38 of 1992 on the state budget that entered into force on 1 January 2006, financial support from the central budget and allocated state funds may be granted beyond the conditions defined by law, if the applicant for support fulfils the general and special criteria of ordinate employment relations defined by law. One of the special criteria is that there should be no administrative fine imposed upon the applicant by the Equal Treatment Authority with a final and executable administrative decision or – if the decision was reviewed by court – with an administrative decision confirmed by a final legal decision within two years preceding the application.
Based on the legal regulations described above, it is a new task of the Authority to certify the fulfilment of the requirements of ordinate employment relations through an official statement, which meant the issue of 6800 official certificates since the beginning of the year. At our initiative and with our cooperation the relevant decree of the Ministry of Labour and Employment was amended to be more “client-friendly”. Due to the modification of Decree Nr. 1/2006 (II.2.) of the Ministry on documents certifying the criteria of ordinate employment relations, which entered into force on 25 May 2006, the regulations of obtaining the documents certifying ordinate employment relations place less burden on the clients and decrease the time of the administration.
The point of the change is that those applying for support do not have to obtain an official statement from the Equal Treatment Authority and the National Labour Safety and Employment Inspectorate, since that will be requested by the organisations granting the support directly from the authorities.
The above two tasks could be carried out by the Authority only through overtime, prescribing the issue of a given number of certificates a day – which affected executive officers and the chief referees of the Authority alike – and the introduction of prudential financial management because of the large postage costs, which in certain cases caused delay in the proceedings of the Authority.
Proceedings of other administrative authorities in the case of the infringement of the requirement of equal treatment
According to the Equal Treatment Act, other administrative authorities with specialized competence and authorities proceeding in cases of minor offences, e.g. consumer protection inspectorates, labour inspectorates, and national organisations assessing public education and exams, play an important role in the implementation of antidiscrimination.
Pursuant to Sec 25, Sub. 2 of Act Nr. 1 of 1978 on internal trade, “it is forbidden to unlawfully privilege or discriminate against a consumer.” Government Decree Nr. 4/1997 (I. 22.) on the operation of stores and the conditions of participating in internal trade prescribes not only the notary of the local council of a settlement and certain specialized authorities, but also the consumer protection inspectorates to supervise compliance with the legal regulations on commercial activities.
Unlawful denial of service defined by Sec. 6, point f of Act Nr. 155 of 1997 on consumer protection (hereafter: Consumer Protection Act), and the infringement of the requirement of equal treatment in relations aimed at providing services in rooms open to the public and at trading goods, are the unlawful behaviours that can provide the grounds for the initiation of the proceedings of both the Equal Treatment Authority and the county (or metropolitan) consumer protection inspectorates.
Pursuant to Sec. 3, Sub. 1, point d of Act Nr. 75 of 1996 on labour inspection (hereafter: Labour Inspection Act), among others labour inspection includes the investigation of the requirement of equal treatment as well.
The National Centre for the Assessment of Public Education and Exams (hereafter: NCAPEE), which operates on the basis of Sec. 95/1, Sub. 1 of Act Nr. 79 of 1993 on public education (hereafter: Public Education Act), also investigates the requirement of equal treatment within the framework of official inspections, furthermore act in connection with minor offences in an official capacity in accordance with law.
In case of an infringement, the Equal Treatment Authority has to apply the sanctions defined in the Equal Treatment Act, the consumer protection inspectorate those defined in the Consumer Protection Act, the labour inspectorate those defined in the Labour Inspection Act, while the NCAPEE those defined in the Public Education Act.
Sec. 15 of the Equal Treatment Act defines the relationship between the administrative proceedings of the Equal Treatment Authority as a general antidiscrimination agency and those of the sectorial authorities – like the consumer protection and labour inspectorates and the NCAPEE – according to the following organizing principle:
The investigation of an infringement of the requirement of equal treatment within the scope of the Equal Treatment Act is carried out according to the choice of the injured party either by the Equal Treatment Authority or another administrative organisation with competence according to law – e.g. the consumer protection inspectorate. This solution enables the injured party to seek legal remedy against discrimination close to their place of residence, through the proceedings of the administrative authority with competence – and vindicate their claims of other nature at the same time as well.
The experiences of the past period have shown that among the organisations listed above – as far as we know – only the NCAPEE has carried out such investigations, and informed our Authority about the results by sending us its report. In some of the investigated cases the NCAPEE was requested as expert in cases of discrimination in education, which is enabled by the government decree regulating the proceedings of the Centre.
Despite the legal authorisation of the other administrative organisations, in our experience the number of such cases is minimal. The reason for this is not only that the Equal Treatment Authority is much better known as an organisation investigating cases of discrimination, but also the fact that the main task of these sectorial authorities is to carry out professional inspections at various institutions, employers and service providers. Their obligations to do so do not allow them to investigate individual complaints with the same depth. Furthermore, the investigation of cases of discrimination requires special knowledge of human rights, procedural law and mediation techniques, which cannot be expected from these authorities. For example, the length of the reasoning in an average case of the Equal Treatment Authority – and of court decisions as well – is 5 to 20 pages, while the resolutions of the specialist authorities are usually one page long. When reviewing the Equal Treatment Act it would be worth to reconsider the necessity of maintaining such overlaps in competence, and the suggestion of the Authority is that these administrative agencies should help the Authority investigate the infringements as specialist experts.
In defence of injured persons and groups the Authority may use the right for public interest claim and can file a labour or personal rights claim if the victims of the infringement form a larger, exactly not definable group of persons. Although such cases were not filed in this past period, our Authority does have employees who have experience in litigation, although the time and labour this would require exceeds our capacity. (This, of course, does not mean that such cases could not be initiated in the future.)
The participation of the Authority in the legislative process
Pursuant to Sec. 14, Sub. 1, points c and d of the Equal Treatment Act, the Authority forms an opinion on and initiates government decisions and legal regulations pertaining to equal treatment.
Among the ministries responsible for drafting various
bills, only a few sent their bills regularly for a preliminary check,
despite the fact that the president of the Authority requested this
in writing from every administrative under-secretary.
Our most important drafting task was the preparation of the amendment of the Equal Treatment Act and the decree regulating the proceedings of the Authority in cooperation with the Advisory Board, which we put forward during the assessment of the draft prepared in the meanwhile by the ministries responsible for codification. Most of our suggestions were included in Bill Nr. T/18902 that was presented to the Parliament. Although the Parliament accepted the amendment, the President – because of his political reservations about certain regulations of the act on the rights of disabled people, which was part of this amendment – sent it back to the Parliament for reconsideration, after which the Government withdrew it.
The content of the amendment can be summed up as follows:
The Authority still considers it absolutely necessary to review the act presently in effect in terms of the above and further elements contained in the Report in order to make the measures taken against discrimination more effective and successful.
During the investigation of individual cases the Authority faces numerous regulations and unregulated issues, which carry in themselves the possibility of discrimination. The suggestions listed below are included in the Report in a way which takes into consideration only the implementation of the requirement of equal treatment. We do not dispute that other aspects must be considered as well when evaluating the reasonability of these suggestions, this is, however, not the task of the Authority.
The so-called Fészekrakó (Nesting) Programme
The Authority carried out an investigation in a case initiated by a notary from Borsod-Abaúj-Zemplén County against a leading bank. During the proceedings the Authority investigated whether the financial institution infringed the regulations of the Equal Treatment Act when it gave the preliminary information to people inquiring about taking a loan within the framework of the Fészekrakó Programme, which supports housing, that the realty serving as collateral for the loan – due to its location in a settlement with unfavourable conditions – does not provide a cover of sufficient value. Consequently, if the realty is the only cover, it is not possible to take a loan within the framework of the programme.
The colleague of the bank also informed these people that their settlement and all the other settlements in the neighbourhood are located in a geographically and structurally unfavourable place, where the bank does not award loans, since the value of realties in these settlements is not sufficient to cover the loan.
During the proceeding the Authority contacted – beside the bank under investigation – the Department of Local Councils and Settlement Development of the Ministry of Finance and the Department of Housing of the National Housing and Construction Office (NHCO) to collect more information.
According to the information provided by the NHCO, with what realty as collateral they grant loans. Consequently, financial institutions award loan only if collateral is available which they consider sufficient.
According to the information provided by the bank, 60 % of the loans is awarded at their own risk despite the state guarantee, and pursuant to the regulations of the Government Decree Nr. 4/2005 [I. 12.] on the conditions of state guarantee the in-depth examination of credit standing, especially of income, is prescribed for banks.
During the proceeding the bank related that “not everyone, who fulfils the personal criteria of the Fészekrakó Programme may be awarded a loan, thus access to the credit/loan is not a civil right”.
The Authority, since the claimant withdrew their claim, terminated the proceeding, although the following conclusions could be drawn from the case:
Pursuant to the legal regulations currently in effect (the above-mentioned Government Decree Nr. 4/2005 [I. 12.], Government Decree Nr. 12/2001 [I. 31.] on the conditions of loans with favourable interest, Decree of the Ministry of Finance Nr. 25/1997 [VII. 1.] on the definition of evaluation of creditor’s security), during the procedures of the evaluation of the creditor’s security the geographical location of the realty, its demographic and economic situation, its location within the settlement structure, its accessibility, connection with public transport and infrastructural facilities must be considered with special attention.
Because of these regulations many settlements in Hungary cannot fulfil the strict conditions defined by law, consequently their inhabitants are practically excluded from the possibility to, or can only with great difficulties (through the proof of additional collateral) get state-subsidized loans. One of the consequences may be that the already existing differences between the various regions will further increase in the future, and the abandonment of small villages will become a tendency.
The Authority asked the Equal Treatment Advisory Board to form an opinion about this issue, which – in its opinion Nr. 10.007/2/20206 – clearly stated that pursuant to Act Nr. 112 of 1996 on credit institutions and financial enterprises, the legal relations of legal subjects qualifying as credit institutions fall under the scope of the Equal Treatment Act. Consequently, the legal relations of credit institutions fall under the scope of the Equal Treatment Act as well, and cases connected with these must be investigated on the merits by the Authority.
To sum up the above: due to the withdrawal of the claim no decision on the merits was reached in the case. However, we suggest a change in the present, strict bank practices – perhaps through changing the relevant legal regulations – in order to make state-supported credit available for a wider portion of the population, and so that the applications of these realty owners, who otherwise have appropriate coverage, would not be rejected just because the location of their realty is unfavourable due to geographic or settlement structural reasons.
We requested the Minister without Portfolio Responsible for Regional Development and Integration to take measures in connection with this issue.
Travel discount of transferred National Railway workers
According to a claim filed to the Authority, the complainant, after finishing their studies in a technical school, had worked for MÁV Inc. (Hungarian National Railway) since 1964. From 1968 until retirement they were employed in Celldömölk, at the Construction Department of MÁV.
In 1993 the workplace of the complainant changed due to legal succession, and they worked for the successor of the Construction Department of MÁV, MÁVÉPCELL Ltd. The legal successor provided the same employee benefits as the former employer until 2000.
In September 2000, MÁV Inc. privatized its share in the company. Consequently its employees lost their eligibility for free travel. They received, however, a verbal promise that they would receive the benefit as pensioners.
The complainant retired in 2004, after 39 years of employment at the railway. During the calculation of the pension, the complainant requested the eligibility for free travel, since three of their previous colleagues – who retired around the same time, after similar length of employment – received this benefit.
MÁV Inc. rejected the claim of the complainant invoking Government Decree Nr. 179/1994 (XII. 28.) on non-subsidized travel and postal discounts that qualify as non-taxable non-pecuniary contribution.
Pursuant to Sec. 3 of the invoked decree, a discount given by a company founded by the railway (MÁV, GYSEV), or by a foundation of the railway without any changes, furthermore, in the case of an eligible relative, even if it is contributed without the limitation of travels, to an individual, who had received the discount until the time of the establishment or transformation, qualifies as non-taxable travel discount. In the case of the railway, however, after 1 January 1995 in the case of those eligible, the discount can extent to, and applies only to those, defined in Sec. 1, assuming that the provider fulfils the criteria in Sec. 1, Sub. 1.
Pursuant to Sec. 1, Sub. 1 referred to above, non-taxable travel discount is a non-pecuniary contribution where a provider who carries out public road, rail or water transport according to a schedule (hereafter: provider) provides free or discount travel to
According to the relevant rules of the legal regulation, after 1 September 1995 all previous employees, pensioners of MÁV and their relatives lost this travel discount, even if – like the complainant – they had been employed for 39 years by MÁV Inc.
The Authority had to dismiss the claim of the complainant, since they had none of the so-called protected characteristics (age, sex, disability, etc.) which could have formed the basis of discrimination according to the Equal Treatment Act.
At the same time the Authority established that although the decision of MÁV observed the above legal regulations, for many MÁV employees and pensioners this created an extremely iniquitous and unjust situation.
Since we do not have exact data at our disposal, the number of those affected cannot even be estimated.
In light of the above, we suggested the modification of the legal regulation in a way that would widen the circle of the eligible to include those who had at least 15 years of employment and previously had been eligible for these discounts, and sent this suggestion to the Prime Minister’s Office.
Participation in the National Secondary School Academic Contest (OKTV)
A claimant, who graduated this year from a bilingual secondary school, had obtained proficiency state language exams in English and Spanish, furthermore had lived in an English-speaking area for a longer period, consequently was excluded from participation in the OKTV according to the rules of participation in a contest in a foreign language. This created a discriminative situation, since while the two proficiency state language exams are worth 20 points in connection with entrance to higher education, a good result at the OKTV may be worth 24 points. Although the complainant achieved the maximum points of 140 with a higher level secondary school leaving exam and the two proficiency language exams, the university accepted not their application, but that of a student who got 24 points for participating in the OKTV.
During the proceeding of the Authority, the complainant withdrew the claim, and the proceeding had to be terminated.
During the proceeding it became clear that those secondary school students, who are not allowed – for one reason or another – to participate in the contest, do not have the opportunity to obtain as many points, as those do, who can participate. After the inquiry of the Authority, the vice under-secretary informed us that with the introduction of the new system, the so-called Bologna Process, similar situations will be avoidable in the future.
In the opinion of the Authority, the equal opportunities of secondary school students during application to universities would be strengthened if another contest could be organized for those, who are for some reason excluded from participation in the OKTV, so that they could test their knowledge and had an opportunity to obtain extra points.
Language exam in Japanese
The claimant filed a complaint to the Authority because in Hungary it is impossible to take a state language exam in Japanese, and it is not possible to recognize a language exam of an international organisation, since there is no accredited exam centre in Hungary where the differential exam could be taken.
According to the claimant, who had graduated from secondary school this year, the current language exam system is discriminative, since by the age of 18 they had mastered Japanese at a level to be able to take a proficiency state language exam. Since in Hungary there is no institution in which such an exam could be taken, and a specialized language exam in Japanese – connected to a higher education degree – can be taken only at the Budapest Business School, the complainant took a corresponding exam in 2004 at the Károli Gáspár Calvinist University organized by the Association of International Education, Japan and The Japan Foundation. Afterwards they filed a claim at the Language Examination Accreditation Centre of the Professors’ House (hereafter: NYAK), and requested the recognition of the international exam. In its resolution Nr. 394/2005 of 8 April 2005, NYAK rejected the request, since currently there is no language examination centre in Hungary in front of which a differential exam could be taken, which is prescribed by Decree Nr. 26/2000 (VIII. 31.) of the Ministry of Education on the recognition in Hungary of certificates of foreign language exams taken abroad. The claimant filed a petition for review at the Ministry of Education, but the decision was unfavourable.
The Authority asked for information from the Ministry of Education and the Language Examination Accreditation Centre of the Professors’ House.
After the inquiry of the Authority, NYAK provided the information that in accordance with Decree Nr. 26/2000 (VIII. 31.) of the Ministry of Education, they announce every year a tender on their website. However, there were no applicants in Japanese. In 2004 NYAK also announced a tender for examination in languages, for which there is no available exam in Hungary, although they are not small languages (e.g. Swedish, Danish, Japanese), but the tender was unsuccessful, and no-one applied for accreditation for examination in these languages.
According to the information provided by NYAK, the enlargement of the selection of available languages is not part of the accreditation procedure. The Centre has no competence to determine this, since state exams in foreign languages are carried out according to market demands. Despite this they did make efforts to improve the situation.
The Ministry of Education is also aware of the problem, since accredited language exam centres are available for only 33 languages. The Ministry put forward a suggestion for NYAK in order to solve the problem, to promote the accreditation of rare languages and to support exam centres. Government Decree Nr. 95/2005 (V. 21.) on the modification of Government Decree Nr. 71/1998 (IV. 8.) on the regulations of state exams certifying knowledge of foreign languages and language exam certificates already enables the Professors’ House to use the amount received from accreditation fees not used for other purposes for – among others – tasks connected to the creation and maintenance of a language exam system of rare languages. This modification of legal regulations requires the modification of Decree Nr. 26/2000 (VIII. 31.) of the Ministry of Education, as a consequence of which the ministry as legislator is legally obliged to find an appropriate solution to the situation.
The Authority established that the procedure of neither NYAK, nor the Ministry of Education infringed the requirement of equal treatment.
Pursuant to the Equal Treatment Act, the Equal Treatment Authority has no competence to review legal regulations, that is the prerogative of the Constitutional Court. Consequently the claim had to be dismissed with the note that the claimant’s problem might be solved in the near future as described above.
Food allowance of public servants
A public servant of a ministry filed a claim at the Authority because of the infringement of the requirement of equal treatment, since although pursuant to Sec 49/F, Sub. 1 of Act Nr. 23 of 1992 on the legal status of public servants (hereafter: Public vouchers as non-pecuniary contribution, this is not always complied with. They requested the Authority to carry out an investigation since their employer did not provide them food vouchers during maternity leave invoking the rules of the Public Service Regulations.
The Public Service Regulations of the ministry establishes that food contribution cannot be given to a public salary, or to a public servant who is exempt from work.
In the claimant’s opinion, the Public Servants Act does not contain any limitations regarding food contributions, as opposed to clothing contribution. (Pursuant to Sec. 49/F, Sub. 1 of vouchers as non-pecuniary contribution.)
Since the Public Service Regulation is not a legal regulation, according to the claimant it cannot contain in this form limitations on the regulations of the Public Servants Act.
After studying the regulations of the Public Servants Act on the issue, it became clear that they indeed do not contain a rule that would limit the content of Sec. 49/F, Sub. 1, or would create a possibility to do so. Non-pecuniary food contribution is defined as “optional” only in the case of retired public servants in Sec. 49/J, Sub. 5, point b, but here the characteristics that forms the basis of differentiation is clearly defined (retirement).
The Authority requested the Office for the Organisation of Public Administration and Public Services of the Ministry of Internal Affairs to take measures in the issue.
With the amendment of the Public Servants Act, which entered into force on 1 March 2006, the invoked regulation was vouchers provided by the employer as non-pecuniary contribution, average wage, provided that the time of the leave is longer than 30 days.
Suggestions regarding the education of the requirement of equal treatment for the basic and advanced qualifying exams of public servants
After months of work, the Authority still had to face the fact (when asking for an appropriate venue for hearings in the countryside) that public servants, both executive officers and employees, at various levels of the administration do not know about the requirements of equal treatment, or the possibilities and ways of legal remedy, or even the Authority itself. This hinders taking effective measures against discrimination especially in the case of local councils and decentralized administrative authorities, since the employees of these bodies have the closest connection to clients in need of help. The situation is not better in the central administration either, as the high number of the “mistaken transfer” of cases not in the competence of the Authority suggests. In case of a negative clash of competence, the Administrative Procedures Act regulates the procedure to be followed, and in the end a court decision must be obtained. This, however, is not a client-friendly solution and may weaken the still existing trust in public administration. Except for a few cases, in order to avoid this the Authority sent a letter to the client about other possibilities of seeking legal remedy. We suggested to take up the topic among the material of the obligatory basic and advanced qualifying exams of public servants, this was, however, rejected by the Ministry of Internal Affairs due to the already congested study material. At the same time the Ministry suggested us to turn to the Hungarian Institute of Public Administration and try to incorporate this knowledge into the training programme of public administration. According to the Authority, however, only an obligatory study material can have a substantial and wide-ranging effect on public administration.
Informing the public, co-operation with governmental and non-governmental organisations
Sec. 14, Sub. 1, points e and f prescribe the Authority to cooperate during its proceedings with civil organisations, advocacy groups and concerned state authorities, and to regularly inform the public and the Government about the implementation of the requirement of equal treatment. An outstanding role in this is played by the website of the Authority: www.egyenlobanasmod.hu. The website contains all the information about the activities of the Authority, we report about meetings with civil organisations, international relations, the nature and elements of the proceedings and the cases under investigation (under the heading “legal cases”), which by now can be read in English as well. There is a regular report about the meetings of the Advisory Board, and its resolutions are also published. Since the end of 2005 the Authority has increasingly relied on the publication of its decisions instead of using sanctions, so far this has happened five times. The media follows with great interest the work of the Authority, and the president, the vice president and other colleagues appeared in the media 148 times.
The executive officers and colleagues of the Authority give talks at the request of civil organisations, trade unions, partner organisations and universities (e.g. for students in their final years). Their number in 2005 and 2006 has reached 140 so far.
All the colleagues of the Authority participated in the training programme of the leaders of minority governments in every county organized by the Ministry of Internal Affairs, and it was also the Ministry of Internal Affairs that made it possible that some information about the Authority was published in the Newsletter of Local Governments. The president of the Authority participated in the regular meetings of the public administration offices of the counties and the capital, and gave a talk about the activities and tasks of the Authority.
The Office of the Ministerial Commissioner Responsible for the Integration of Disadvantaged Romani Children of the Ministry of Education and the Sulinova Kht. founded by the Ministry of Education reviewed the promotion of the equal opportunities of children with cumulative disadvantage and Romani children in the activities of authorities and organisations in charge of educational policy in the immediate environment of these children. We signed a cooperation agreement with the Office of the Ministerial Commissioner in order to increase the efficiency of mutual information flow and cooperation between the authorities. As a result, they send us all the reports and investigation documents of cases under the scope of Equal Treatment Act they encounter during fact-finding or receive information about through other channels. The agreement also includes the commitment of the Office of the Ministerial Commissioner to give the Authority the contact information of the specialists, researchers and sociologists who are involved in the study of the relevant issues, and – at the request of the Authority – ensures their cooperation as specialist experts.
The president of the Authority gave a talk in the Office of National Justice Council as part of the training of judges about the experiences of the implementation of the Equal Treatment Act. Meeting judges specializing in personal rights, labour and public administration cases is important in order to create a uniform practice of implementation, especially since we cannot yet talk about an entrenched judicial practice in cases of discrimination.
In connection with a specific complaint we managed to find a solution for the problem of many blind or partially sighted people. The claimant could not make use of the services of the Metropolitan Szabó Ervin Library. The case ended with an agreement, as a result of which on the occasion of White Cane Day 2005 “Together for each other and for a different world”, at the invitation of the Hungarian Association of the Blind and Partially Sighted, a representative of the Authority was present in the Kelenföld Library of the Metropolitan Szabó Ervin Library, when the it presented its services helping visually challenged people.
A similar direct relationship has been formed with the National Association of Disabled People, the Women’s Board of the National Association of Trade Unions and other sectorial organisations.
The Authority participated in the last phase of the EU-campaign “For Diversity. Against Discrimination” organized by Double Decker PR Agency between 2001 and 2006, and provided expert help in the campaign, the first step of which was a joint appearance at the Sziget Festival. We also participated in the first training of testers.
As part of the cooperation with the legal defence organisations of the Ministry of Justice, the president of the Authority participated in the training of the colleagues of the Romani Antidiscrimination Service Network in October 2005. The activities of the network, which employs 35 lawyers, are very similar to those of the Authority, with the difference that the lawyers may litigate on behalf of Romani plaintiffs who had suffered discrimination. The network had been established before to system of pro bono lawyers was introduced or the Equal Treatment Authority with general competence in antidiscrimination cases was founded. Consequently, the Authority asked the lawyers that if they think that litigation is avoidable, they should encourage their clients to file a claim at the Authority and represent them in order to find more efficient and faster legal remedy. If no discrimination was committed, but the complainant still is in need of legal help, the Authority would help get in touch with the pro bono lawyer service of the Ministry of Justice.
On three occasions the colleagues of the Authority informed the participants of conferences for representatives of patients’ and children’s rights about possibilities for legal remedy in cases of discrimination during health care.
Already in June 2005 the president of the Authority informed the Parliamentary Committees of Human Rights, of Minority and Religious Issues and of Employment about the circumstances of the foundation of the Authority and the experiences of the first period of its operation at the request of these committees.
Cooperation was launched with the Ministry of Employment and Labour, the National Consumer Protection Inspectorate and the NCAPEE as well. This has significance because of overlapping competence, since in certain cases a complainant may turn to more than one authority according to their choice because of the infringement of the requirement of equal treatment.
The Authority carried out negotiations with the Ministry of Employment and Labour about the possibility of disseminating plain information to, and encouraging, employment seekers in the closest possible location to them, in local employment offices, about the possibilities to take measures against discrimination. In lack of financial means, the information leaflet could not be published in 2005. Using the above-mentioned partnerships, the Authority plans to distribute it from September 2006 with the help of institutions, offices and legal defence organisations visited most often by disadvantaged people.
At the initiative of the Authority, consultations were launched with the Chief Prosecutor’s Office, the Metropolitan Labour Court, the Public Administration College of the Metropolitan Court, the Pest Central Circuit Court, the Parliamentary Commissioner for National and Ethnic Minority Rights, the Office of the Data Protection Commissioner and the ministerial commissioner of the Ministry of Education in charge of Romani issues. The professional consultations provided help in getting acquainted with practices of implementation, its unification, and legal interpretation during our future proceedings.
The human rights consultation series launched in the second half of 2005 with the participation of famous Hungarian scholars and well-known human rights experts like András Bíró, Csilla Kollonay, György Csepeli and Gábor Halmai served as human rights training for the colleagues of the Authority.
We consider increasing the activities of concerned civil organisations and local councils especially important in the investigation and representation of cases of discrimination against Romani and disabled people, since in our experience the victims of discrimination usually do not dare to file a case on their own, without help and encouragement, and are not always capable to effectively vindicate their rights.
Continuous dissemination of information and help for the concerned
In December of
the last year, the Authority moved from its rented headquarters in 6
Vigadó Str, Budapest to the building of the Ministry of
Economy and Transport in 85 Margit krt, Budapest, 2nd
disctrict, due to a change of owners. Afterwards, with the creation
of an appropriate place, it became possible to organize regular,
weekly client consulting hours.
III. Equal Treatment Advisory Board
According to the regulations of the Equal Treatment Act, the Authority carries out its task in cooperation with the Equal Treatment Advisory Board. The six members of the Advisory Board are, in accordance with the regulations of the Act, persons with outstanding experiences in the protection of human rights and the implementation of the requirement of equal treatment. The candidates were nominated by the Minister of Youth, Family and Social Issues and Equal Opportunity and the Minister of Justice to the Prime Minister after consultation with concerned legal defence organisations, advocacy groups and civil organisations. Based on these suggestions, Prime Minister Ferenc Gyurcsány appointed as member of the board Attorney Lilla Farkas, dr Tamás Gyulaváry University Lecturer, dr Mária Herczog sociologist, Attorney József Kárpáti, Attorney László Majtényi, previously Data Protection Commissioner and Attorney György Szigeti. Due to László Majtényi’s resignation the board currently has five members.
During the last year the Advisory Board held three meetings. On the meeting of 15 July 2005 it accepted its schedule, according to which meetings are to be held at least every two months, the openness of the meetings will be decided on each occasion depending the agenda, its president is elected secretly for one year, and its resolutions and opinions will be published. The Board determines the rules of the cooperation with the Authority. The secretarial duties in connection with the work of the Board and the preparation of resolutions are administered by a lawyer of the presidential secretariat. At this meeting it first discussed the amendment of the Equal Treatment Act.
At the meeting of 9 September Kinga Gönczöl, the Minister of Youth, Family and Social Issues and Equal Opportunities was present as well and was informed about the work of the Board, the relationship between the Board and the Authority and the circumstances impeding work. The Board elected its president, Attorney Lilla Farkas, for the period of one year, and finalized its resolution about the amendment of the Equal Treatment Act. Since it differed in many points from the stance of the ministries responsible for codification, the Board informed the ministers involved in a letter about the amendments it considered important. The bill presented in front of the Parliament contained some of these already. Furthermore, the Board adopted its agenda for 2005. It drafted a suggestion to organize a conference in 2006 for the equal treatment authorities of the countries that had recently joined the EU and of those that are before accession. This was realized in June 2006 regardless of the suggestion of the Board, since the minority ombudsman had already suggested it as a member of Equinet, the association of European equal treatment authorities. It discussed the availability of the facilities and the activities of the Authority in the light of the tasks of the following year, and the procedural issues connected to the infringement of the requirement of equal treatment.
At the meeting of 10 October 2005 the Board reviewed the activities of the Authority so far, requested information about the personnel and financial situation of the Authority in light of its tasks for 2006, and discussed issues of procedural law with special attention to the problems of demonstration. In connection with specific cases, it adopted a resolution about the issue whether banks and financial institutions as organisations providing services in areas open for the public and giving public offers fall under the competence of the Authority. Consequently, claims mainly from complainants who do not have access to certain services because of their age or financial circumstances can be investigated. Each case must be investigated individually to decide whether the distinction had a reasonable, objectively justifiable cause. The Board suggested that the Authority put more effort into presenting its work and activities to the wider public, since through the publication of decisions those concerned may be able to gain more information, especially regarding competence (that is, in what cases the Authority can initiate proceedings).
The Board records its decisions in the form of resolutions. In 2005 it adopted 11 resolutions, mainly at the initiative of the Authority, and it continuously supervises their implementation. It publishes its opinions that may be of interest for the professional and non-professional public in the form of statements. No statements were given it 2005 since the Authority operated only for a short time and experiences about implementation suitable for general evaluation were not available. In 2006 two statements were adopted, whose detailed content are available for the public.
Statement Nr. 10.007/1/2006 TT of the Equal Treatment Advisory Board on sharing of the burden of proof The aim of the demonstration of exemption is to provide an advantage for the claimants compared to the general rules of demonstration. Beyond the demonstration of the two elements prescribed by the Act (Sec. 19, Sub. 1, points a and b) the burden of proof of the causal connection cannot be placed on the claimant, since in that case the rules facilitating demonstration in Sec. 19 would become empty, the general rules of demonstration would apply and the aim of the demonstration of exemption would not be achieved. Statement Nr. 10.007/2/2006 of the Equal Treatment Advisory Board The legal relations of legal persons qualifying as credit institutions regulated by the Credit Institutions Act fall under the scope of the Equal Treatment Act. Pursuant to Act Nr. 112 of 1996 on credit institutions and financial enterprises (hereafter: Credit Institutions Act) the legal relations of legal persons qualifying as credit institutions fall under the scope of Act Nr. 125 of 2003 on equal treatment and the promotion of equal opportunities (Secs. 3, 4, 5 and 6 of the Credit Institutions Act, Sec. 5 of the Equal Treatment Act).
The work of the Advisory Board is continuous, and in its agenda for 2006 it planned to discuss 10 issues: procedures connected to the adoption of Romani children, school segregation of Romani and disabled children, equal wages of women for equal work, same sex marriage and the institution of registered partnership, lack of legal regulations on transgender persons, the role of the Advisory Board in the formation of public opinion, adopting a statement on the obligation to secure disabled access, problems of renting labour force, prevention of discrimination in employment and discussing the suggestion about informing those concerned, establishment of the list of so-called “prohibited questions”, and the discussion of the annual report on the activities of the Equal Treatment Authority. In the first half of 2006 the Board had four meetings and adopted seven resolutions. Beside the above-mentioned two statements the Board prepared a statement on the obligation to secure disabled access and published it on its website in order to get information about the opinion of concerned civil organisations. The Board also inquired about the opinion of the National Council for Disability Issues.
After considering these opinions the Board will send its final statement to ministers in charge in September in order to contribute to the amendment which is expected to be presented to the Parliament.
IV. The international relations of the Authority
The establishment of international relations was delayed by the fact that in the first period our primary task was to create the necessary conditions for the operation of the Authority. It was only exacerbated by the lack of network support, ministerial support and personnel, and by the extendedness of the EU institutions in this area. The situation improved considerably first with the setting up of the Advisory Board, since a number of its members have a membership in EU institutions, and second because a few international organisations contacted the Authority immediately after they had heard about its foundation. As a consequence a close relationship has been formed with the Hungarian representatives of the European Monitoring Centre on Racism and Xenophobia (EUMC), Vienna, who prepare an annual report for the EU about the situation in Hungary. A number of meetings have been organized with the experts of ECRI, founded by the EU. The Authority joined the activities of EQUINET, a network embracing the antidiscrimination authorities and boards of EU member states, founded by MIGPOLGROUP, so far only as an observer, but the head of the Authority suggested the leadership to reach a decision about membership, which would require the consent of the Government and the EU representatives. Beside the above, the representatives of the European Roma Rights Centre and ILO have been contacted directly.
The tasks connected to maintaining international relationships are carried out by of the chief referees of the Authority beside their other duties. Due to financial reasons the Authority can send a colleague speaking a foreign language as a delegate to only a few of the otherwise rather numerous EU professional meetings.
Between 11 and 15 of July 2005 a representative of the Authority participated in the Disability Discrimination Summer School 2005 organized by the National University of Ireland in Galway. The participants of the summer school were delegates from eleven countries. It is notable that not only EU member states were present, but Turkey and Russia were represented as well. The majority of the participants from Ireland were disabled people themselves, many of them participated in the talks as representatives of civil organisations working with disability issues.
A colleague of the Authority
participated in a seminar held in Brussels on 20 October 2005, the
topic of which was the implementation of EU directives 2000/43/EC and
2000/78/EC.
On 5 December 2005 the Committee for Equal Opportunities for Women and Men of the House of Representatives of the Romanian Parliament – lead by committee president Mindora Cliveti, vice president Gheorghe Firczak and committee member Mr. Sándor Tamás – visited the Authority and discussed Hungarian regulations and practices.
President Mindora Cliveti noted
with regard to the shift of the burden of proof that the Romanian
act, which prohibits all forms of discrimination, did not yet contain
such a regulation, although they had already suggested the amendment
of the act, and the draft already included this procedural guarantee
which would greatly facilitate the legal remedy of the victims of
discrimination.
The Authority regularly forms an opinion on the international reports of various ministries, although probably there are more reports than those sent to the Authority for review. Many foreign universities and especially the students of CEU contact the Authority and request an interview for research aims. The Authority tries to use these occasions as well to disseminate correct information about the present state of equal treatment in Hungary.
V. Main professional tasks of the Authority in 2006:
VI. Summary
After the adoption of the Equal Treatment Act and the setting up of the Equal Treatment Authority, the Government not only fulfilled its obligation towards the EU but created the legal conditions and founded an institution which is in fact, or may become through its activities, capable of implementing human rights, among them equity, human dignity and – in connection with these – the prohibition of discrimination.
The Authority – in close cooperation with other agencies – contributes to the elimination of prejudices, the creation of social cohesion and the conscious fight against discrimination. The element endangering social cohesion the most is social exclusion, which mostly affects those with one of the protected characteristics listed in the Equal Treatment Act (ethnic minorities, women over 50, disabled people, disadvantaged people). Social cohesion and social peace are greatly threatened by discrimination by majority society, and especially by public bodies and employers. The activities of the Equal Treatment Authority also serve as evidence that economic reforms and governmental measures serving the enhancement of the competitive strength of the country must be implemented in a way that would not result in the violation of human dignity, would not allow the abuse of power, indeed, they should contribute to the strengthening of solidarity and provide protection for those most in need.
In order to increase the efficiency of the contribution of the Equal Treatment Authority to the implementation of these aims, not only should the legal regulations currently in effect be implemented at a higher standard, but the legal regulations themselves should be amended in the light of experiences gained so far.
A four-year government programme – in harmony with the previous government decision about the creation and gradual expansion of the Authority – is aimed at the strengthening of the Authority especially in order to make the measures taken against ethnic discrimination more effective. Until this becomes possible, the investigation of cases of discrimination, education, the dissemination of information, and the widening and maintaining of social communication are possible with the help of the already available resources, and through the strengthening of cooperation with other organisations. |
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Impresszum
Frissítve: 2010.08.30.
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Nemzeti
Országos Munkavédelmi és Munkaügyi Főfelügyelőség
Nemzeti és Etnikai Kisebbségi Jogvédő Iroda
