Volume 10 Numbers 2/3

Spring/Summer 2001

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Hungary - On June 19, parliament adopted the so-called "status law," by a vote of 306 to 17 with 8 abstentions, spurring recriminations and criticism from neighboring countries with large Hungarian minorities. The law provides rights and certain preferences for ethnic Hungarians who live beyond Hungary's borders, a group which numbers between three and four million. The law, which comes into force on January 1, 2002, allows ethnic Hungarians to work in Hungary for a three-month period each year. During that time, they will pay into the Hungarian social security system and will receive health benefits and pensions. The law also offers financial support for public-transport costs as well as assistance for students in higher-education institutions while they are in Hungary. In addition, it extends assistance to ethnic Hungarians in their home countries who have more than two children in Hungarianlanguage schools. In order to qualify for any of these benefits, individuals must obtain identity cards, which will entail a recommendation from a Hungarian organization recognized by the Hungarian government.

The final version of the law was watered down substantially from what was originally envisioned. The earlier concept was dedicated to the idea of forming a strong and constitutionally recognizable bond with nationals living outside Hungary's borders. The intention was to create a kind of "out-of-state-citizenship," the legal and political manifestation of the cohesion and solidarity of all ethnic Hungarians with Hungary.

Two opposition parties were critical of the law's text as adopted. The Hungarian Socialist Party (HSP), which supported the law generally and even voted in favor of it, claimed that the government was underestimating the legislation's price tag. The party stated that some 1 million people would take advantage of the health-care benefits, at a total cost of some 15 billion forints ($50 million), while the complete annual expense of the proposed legislation would come to around 60 billion forints. Additional concerns were raised regarding the Hungarian labor market's capacity to deal with the estimated 700,000 additional legal laborers. The Alliance of Free Democrats (AFD), the only party that voted against the law, claimed that the preferences and benefits included in the law will not persuade ethnic Hungarians to stay in their home country but, in fact, would encourage immigration. The government claimed, on the contrary, that the law aims at encouraging Hungarians to stay in their home countries.

The law has incurred a spate of criticism from the adjacent countries with sizable Hungarian minorities, notably Romania. Harsh statements from extreme nationalists, such as Corneliu Vadim Tudor of the Greater Romania Party, who demanded, among other things that Romania suspend its basic treaty with Hungary, could perhaps be expected. But even moderate leaders, such as Romanian president Ion Iliescu, Romanian prime minister Adrian Nastase, and Slovakian prime minister Mikulas Dzurinda, were all critical of the legislation. Nastase vowed to prohibit implementation of the law, while Dzurinda called it discriminatory. Hungary's political leaders, Prime Minister Viktor Orban (Federation of Young Democrats-Hungarian Civic Party) and Minister of Foreign Affairs Janos Martonyi, defended the law, insisting that it had been misunderstood and was aimed only at preserving the cultural identity of Hungarians abroad. On June 26, the Romanian delegation to the Parliamentary Assembly of the Council of Europe submitted a resolution calling on Hungary to suspend implementation of the law. The resolution, which was supported by 26 delegates in addition to the Romanians, stated that the law was discriminatory and violated the territorial integrity of other countries. For its part, the EU has stated that the law does not contravene EU principles, but it did urge the Hungarian government to take diplomatic steps to address the concerns of the other governments.

The affair prompted a good deal of diplomatic activity. For the time being, at least, the Romanians have toned down their rhetoric, and the Hungarian government is willing to address their concerns. The Romanian government has stated that it does not object to Hungary supporting ethnic Hungarians abroad (indeed, the law is not so revolutionary, in that sense); rather, it objects to the granting of identity cards, which it sees as a matter of extraterritoriality. In late June, the Romanian government accepted a Hungarian proposal that the two countries discuss the status law in the minorities subcommittee of the intergovernmental joint committee set up by their basic treaty. In early July, Martonyi, in an attempt to prove that the law was not so extreme, asked the Council of Europe's Venice Commission to analyze laws adopted by other European countries that also grant certain rights and preferences to ethnic minorities in order to foster their identity. While Romania was certainly the country most troubled by the law, the Hungarian government will begin negotiations, in this connection, with all neighboring countries with Hungarian minorities.

By the end of May, approximately nine out of twelve Hungarian Roma families, which had fled their village, Zamoly, last year, were granted refugee status in France. The families' applications were reviewed according to the 1951 Geneva Convention Relating to the Status of Refugees, which stipulates that an adjudicating body must examine each request individually and determine that the person has a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. . . ."

The plight of these families began over three years ago, when their homes were demolished by the local government after they had been damaged in a storm. For the next three years, the Roma were housed in several different locations, although, according to the European Roma Rights Center, an organization which monitors the situation of Roma in Europe, the facilities were often substandard and correct legal procedures were not followed in the various relocations. In June 2000, the families filed a complaint against the local Zamoly government, alleging that the municipality had violated their rights when it first ordered the destruction of their homes. Some time after the complaint was filed, the Roma fled to France, alleging that they had suffered persecution and had been the victims of violence in Hungary. (In 1999, while being housed in a cultural center in Zamoly, the families received multiple death threats and were physically attacked.) In March, the Fejer County Court rejected the suit against Zamoly, claiming that the local authority had not violated the families' rights, and, although they did suffer some nonpecuniary damages, this was not the fault of the local government. In another related suit, on June 13, the European Court of Human Rights rejected a petition submitted by the Zamoly Roma, noting that they had not exhausted all the legal options in Hungary.

The French approval of the asylum requests was a blow to the Hungarian government, especially in light of Hungary's bid for EU membership. The government tried to downplay the event, initially claiming that the applications would be rejected. Once they were approved, the government then claimed that the Roma had only been granted asylum, in theory, something less than refugee status. However, observers note that the Geneva Convention does not recognize any such distinction. Some commented that France's recognition of the persecution of Hungarian Roma could possibly prolong Hungary's accession to the EU, which has previously taken note of the plight of Roma in Hungary and indicated that the country must make progress in this regard before it can join the union. In its most recent Regular Report on Hungary's progress toward accession, issued in 2000, the EU noted that Roma "have continued to suffer prejudice and widespread discrimination," particularly in connection with the judiciary, police, employment, and education.

The Hungarian government criticized the French decision; one government spokesperson declared that it was "unfounded, unfair, and unjust." Prime Minister Orban was critical as well, adding that Hungary had nothing to be ashamed of. The government pointed out that the funds spent on Roma programs-mainly in the areas of education, health, and social and family affairs-have increased under the current government to 7.2 billion forints ($25 million) in 2000. In April, the Ministry of Justice announced that this would rise to 9.4 billion forints in 2001, and a committee would also be established to decide whether Hungary's antidiscrimination law was sufficient or whether further legislation was necessary to conform to EU standards.

In any case, Roma activists and organizations have commented that the French decision highlights the condition of the Hungarian Roma, who number approximately 5 percent of the population. They point out that Roma are often discriminated against, denied equal access to education, and encounter police brutality and racially motivated violence. In its report, the EU noted that life expectancy among the Roma population is ten years less than among non-Roma; less than 46 percent of Roma children finish primary school, and just .24 percent have a college or university degree. Hungary's unemployment rate hovers around 11 percent; local organizations claim that among Roma men, this figure is between 60 and 80 percent and can reach as high as 90 percent in certain villages.

In March, in Decision 7/2001 (III. 14.) AB, the Constitutional Court found that the granting to ombudsmen (parliamentary commissioners for the protection of constitutional rights) the power to review the activities of governmental branches, juridical agencies (except for courts), and other extrajudicial bodies of conflict resolution is unconstitutional.

The decision-conveyed in a surprisingly short opinion-was authored by Justice Mihaly Bihari, while Justices Istvan Bagi and Laszlo Kiss dissented. Article 29.1 of Law No. 59 of 1993 on the parliamentary commissioners for the protection of constitutional rights specifies the jurisdiction of the ombudsmen. The Court found that the challenged subsections of Art. 29.1, subjecting governmental branches, juridical agencies, and extrajudicial conflict-resolution bodies to the review power of ombudsmen, were not sufficiently clear and thus violated the requirements of the rule of law. The Court described the phrase "governmental branches" as especially problematic, since it creates the impression that ombudsmen may review the activities of parliament, which would violate the notion of separation of powers. References to "juridical agencies" and "extrajudicial bodies of dispute settlement" were also found to be imprecise, and thus, unconstitutional.

The limitations on the ombudsmen's jurisdiction go into effect on December 15, 2001. As a result of this decision, ombudsmen will not have jurisdiction over parliament, procurators, tribunals and organizations of commercial arbitration, public notaries, and mediating bodies for consumer protection. According to some observers, even prisons might be beyond their reach. The ombudsmen's purview will still include the activities of agencies that perform administrative functions, the armed forces and the police, intelligence agencies, and local governments.

The limitations on the powers of the ombudsmen were confirmed in the midst of a political environment unfriendly toward the ombudsmen in general. More specifically, a statement issued by the ombudsman for data protection, Laszlo Majtenyi, on January 19, regarding certain items in the latest census survey, had contributed greatly to the government's general displeasure with the ombudsmen. As Majtenyi explained in the statement, at his suggestion, the chairman of the Office for Statistics had decided that census takers could not record the home addresses of individuals in the census questionnaire. The statement also stressed that answering questions on national and ethnic origin as well as religion was optional. Majtenyi reminded people that the anonymity requirement and the optional nature of certain kinds of information are included in the laws on data collection and protection.

By the time the statement was issued, the census questionnaires had already been printed, and there was no time for reprinting. The ombudsman's statement was widely publicized, and, despite his reminders that the requirements and limitations were laid out in the dataprotection law, many politicians seemed to blame him personally for the ensuing confusion. Certain politicians from the governing parties commented harshly, claiming that the anonymity requirement made the census meaningless.

In June, when the terms of the ombudsmen in office expired, this unfriendly attitude was still apparent, and, at that point, the census scandal took a new turn. The news media revealed that in 17 census districts, the census takers were replaced by members of the Republican Guard, the elite police division that protects important political and public figures. The government claims that this action, which involved approximately 1,800 households (all of them presumably unaware of the true status of their interviewers), was necessary to protect high officials and public figures, such as the president, the parliamentary speaker, and the chief justices of the Supreme Court and the Constitutional Court. The government argued that it would be too dangerous to have ordinary census takers going into the homes of people who lived near such high-ranking officials. The opposition, however, referred to the action as an intelligence operation-as in the communist days when intelligence agents would collect census data in certain "closed" districts. Government officials and police naturally rejected the notion that the involvement of the guard was illegal in any way, claiming that "protected census districts" had been used during previous census surveys, to no ill effect. In Hungary, a census is conducted every ten years.

It was in the context of these events that, on the nomination of President Ferenc Madl, parliament elected Barnabas Lenkovics (a former professor of civil law) as parliamentary commissioner for constitutional rights and Albert Takacs (formerly a professor of constitutional law) as vice parliamentary commissioner and reelected Jeno Kaltenbach as ombudsman for the protection of ethnic and national minorities. Majtenyi's position remained vacant, since opposition parties did not support the candidate favored by the government. According to Art. 32.B of the Constitution, ombudsmen are nominated by the president and must be approved by parliament by a two-thirds vote.

The Constitutional Court handed down an important decision concerning the safeguards of the freedom of association (Decision 6/2001 [III. 14.] AB). The petitioners had filed a constitutional complaint challenging Art. 4.1 of Law No. 2 of 1989 on the Freedom of Association, which sets forth a formal registration procedure for associations. According to Hungarian law, an association is created by its registration and may act as an organization only after this occurs (Art. 4.1 of the law). Under Hungarian law, associations are registered by courts of general jurisdiction, in a noncontentious procedure, based on written submissions and without a hearing. The law on the freedom of association provides that organizations must be registered in an expedient fashion (Art. 15.3 of the law), and according to the general rule of civil procedure, courts are required to proceed within a reasonable time (Art. 2.1 of the Code of Civil Procedure).

While upholding the constitutionality of the registration requirement, the Court found that the law does not contain sufficient guarantees against undue delays in the registration process and ordered parliament to adopt new legislation by December 31 to remedy this unconstitutional omission. Justice Istvan Kukorelli wrote for the Court, while five justices (Justices Bagi, Attila Harmathy, Janos Strausz, Eva Terztyanszkyne Vasadi, and Chief Justice Janos Nemeth) out of the eleven dissented. The dissenters argued that the law contained sufficient guarantees against delays. The case that gave rise to the constitutional complaint began in the Metropolitan Court in 1995, and the complaint was filed with the Constitutional Court in 1997.

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