White Booklet 2006
Report of the Legal Defence Bureau for National and Ethnic Minorities WHITE BOOKLET 2006
Report of the Legal Defence Bureau for National and Ethnic Minorities
Published by: JÓZSEF KÁRPÁTI Edited by: KLÁRA IVÁNYI The case descriptions were prepared by: LÁSZLÓ BIHARY • ERIKA MUHI • MÁRTON UDVARI • KLÁRA IVÁNYI A publication of the OTHERNESS FOUNDATION © OTHERNESS FOUNDATION, NEKI, WHITE BOOKLET,BUDAPEST 2006
2 Table of contents
Foreword The Year Court decisions of 2006 in procedures launched by NEKI Anti-discrimination trainings Publications Employment Case of Katalin B Case of Attila Sz Housing Case of B. Sándorné Education and training Segregation in a pre-school Case of Árpádné F. Goods and services Case of Nikoletta R. Criminal and petty offence procedures Case of János K. Case of Ernő S. Representation of victims in criminal procedures Case of Ferenc N. Case of Gusztáv G. and others Case of Péterné B. Other cases Case of R. Sámuel Statistics About discrimination About the organization About legal defence Donors in 2006
3 Foreword
In 2004 the Republic of Hungary joined the European Union, which requires changes in every single sphere of the society. In compliance with the expectations of the EU, the Act CXXV of 2003 on equal treatment and the promotion of equal opportunities (hereafter: ETA) came into force on 27 January 2004. The aim of the act is to facilitate the more effective combat against discrimination, to strengthen the role of the NGOs and to set up a single organ responsible for managing the field of anti-discrimination.
The experiences of the last three years, since the ETA came into force, allow us to draw some conclusions as to the efficiency of the new regulation, its possible shortcomings and the challenges faced by human rights activists.
By now it became obvious that the role of the NGOs strengthened in the field of legal defence: the first successful (and also unsuccessful) decisions have been reached in the actio popularis lawsuits, the Supreme Court decided cases in which the winning of the case was dependent upon the way the Court interpreted the rules of the burden of proof in the procedures launched for discrimination. NGOs also initiated procedures in cases when the legal system previously could not provide remedy because of the specialty of material or procedural rules.
By setting up the Equal Treatment Authority a new actor turned up in the field of the protection of human rights. The grounds of the organization’s existence are justified by the fact that the Authority managed to operate efficiently even under poor financial conditions.
The changes of the legal framework after the accession to the EU, the existence of the Authority and the changes in the donors’ strategy meant new challenges for the NEKI as well.
We have to interpret and apply the new institutions of the legal system, and it became inevitable to form the approaches present in the practice of the judicial organs and other competent authorities. In the framework of this activity it is not enough to litigate and train the judges, we also have to apply alternative methods of interest assertion in order to decrease the overall level of discrimination against national and ethnic minorities – in case of the Office, especially of the Romas – and to achieve that human rights perception become a natural approach in the practice of the law enforcement agencies. Social prejudices cannot be disrupted by applying only the instruments offered by law, however, we have to use every legal tool to create a fair society.
In the past years the Office tried to set long-term strategies, as a result of which our image also altered: we focus on cases that are strategically relevant in forming the judicial practice. We try to make our results available to the wider public by organizing trainings and using the media.
In the next year we shall concentrate on strengthening strategic thinking and preserving financial balance. We shall try to select the cases after a thorough analysis, whilst we completely ignore the political issues
28 February 2007, Budapest
József Kárpáti Director
4 THE YEAR
5 Court decisions of 2006 in procedures launched by NEKI
I. Decisions in lawsuits launched for labour-related discrimination
I. 1. The Metropolitan Labour Court obliged in its judgment of 2 May 20061 the Bross Security Ltd. to pay 350.000 forint non-pecuniary damages for R. Norbert2, the Plaintiff. According to the facts established by the Court, the Ltd. operating in the security field protected one of the district local government’s offices through a subcontractor. A vacant position in the office was advertised by the subcontractor for which Norbert R. of Roma origin also applied. R. Norbert was found to be suitable at the job interview both by the subcontractor of the security company and the head of the office’s costumer service, still the applicant was not recruited. When Norbert met the representative of the principal contractor he was told that his application had been rejected. Norbert later inquired via phone at the subcontractor about the reasons of the rejection who said that the principal „was looking for a more handsome person with a more impressive general appearance”. In our action submitted on behalf of Norbert R. we requested the Court to oblige the principal contractor to pay 800.000 forint non-pecuniary damages for the breach of the requirement of equal treatment by not employing the Roma Plaintiff despite the fact that he was suitable for the job. Primarily, we asked the court to establish the violation of the requirement of equal treatment on the grounds of Roma origin. However, in light of the data emerged during the proceedings we changed our action and asked the court to establish discrimination with regard to appearance. (Besides having conspicuous Roma characteristics the Plaintiff was taller and heavier than the average.) In its answers to the charges the Respondent submitted that the Plaintiff had not had necessary membership in association/chamber, later said as an explanation that due to the physique of the Plaintiff they did not have smock of proper size. The Court expounded in the arguments that in course of the proceedings it was agreed that the Respondent was looking for a security guard to fill in the vacant position and the Plaintiffs application was rejected. The Plaintiff proved before the Court that he was of Roma origin and „his appearance can be regarded as relevant feature of his personality that the ETA refers to”.3 Afterwards the burden of proof reversed and the Respondent had to prove that it abided by the requirement of equal treatment or in the particular legal relationship was not obliged to do so. To prove this, an objective justification would have been needed that was directly related to the legal relationship, the Court explained. However, the Respondent did not raise objective reason justifying the rejection, as he rejected the Plaintiffs application on the basis of his appearance and without examining his suitability and skills. In addition, the Respondent did not refer to any reason in light of which the appearance could have been relevant for the position. The Court emphasized in the decision that „there was no evidence shown during the proceedings suggesting that the reason for not recruiting the Plaintiff was his Roma origin. The Plaintiff himself said that he felt the genuine reason for his rejection had been something else than his origin”. Therefore the Court held that discrimination occurred in this case but not on the grounds of ethnic origin as the reason for Norbert’s rejection was his „appearance”. In our opinion this line of argumentation is controversial because it is commonly known that discrimination against Roma people takes place so that the person with visible characteristics of the protected group shall be categorized as belonging to the Roma minority. Being aware of that, the party discriminating against someone cannott ask the person „with Roma-like appearance” (romás külsejű) whether he/she is Roma or not and if the answer is yes „he/she would like to treat him/her differently”. It is also unquestionable that if a Roma Plaintiff (or applicant) alleges in a legal procedure that he/she has been discriminated against, several other protected characteristics might be referred to, like colour of skin, financial situation or social origin. We think that in such cases it is possible to establish the occurrence of discrimination on grounds of ethnic origin besides – and not instead of – establishing discrimination on grounds colour of skin, social status or „other status” like appearance. In the instant case we think the Court should have decided that besides discrimination on the basis of „other situation”, discrimination on grounds of ethnic origin happened as well. Since we were those who made it possible for the Court to establish discrimination on grounds of other situation by amending the action, in our appeal of 28 June 2006 we only requested to amend the decision with regard to the amount of the non-pecuniary compensation. In the argumentation we expounded that the discrimination wore
1 Metropolitan Labour Court decision No 29. M. 5804/2005/18.. 2 For more details about the case please see: White Booklet 2004. Case of Norbert R.. 12 - 16. 3 Article 8 of the ETA
6 out the Plaintiff very much and he still could not find a permanent job. It is a serious breach of law that the Plaintiff was prevented from finding a job by the Respondent, and this action might reinforce the Plaintiff’s feeling that the reason for he is not able to get a job is his appearance. We also mentioned in the appeal that the judicial practice recently tends to award higher amount of compensation in similar cases.4 Accordingly, we requested 500.000 forint as non-pecuniary compensation. The Court of Appeal scheduled the hearing for 13 April 2007.
I. 2. The Court of Borsod-Abaúj-Zemplén County upheld the first-instance decision of the Miskolc Labour Court of 2 March 2006 on 13 June 200656, which obliged the Local Council of Szalonna to pay 2198 forint pecuniary and 200.000 forint as non-pecuniary damages. As the Court of first-instance wrote in its decision, the Plaintiff, Zsoltné R7. of Roma origin, was not recruited by the local council, the Respondent, because locals said: they would not accept meal from the hands of a Gipsy women. As it turned out in course of the civil proceedings, there had not been precedent in this village for employing people of Roma origin in the canteen – where they cook for two villages. According to the „unwritten/customary law” of the village, Romas are employed as street orderlies (sweeping the street, collecting the garbage), while in the nursery school and at the Local Council exclusively non-Romas are employed. The lady was not recruited at the canteen despite the fact that upon the instruction of the mayor she had undergone all the necessary medical examinations at her own expenses and her recruitment was supported by the head of the nursery school as well. Instead of getting the assistant work in the canteen she later was employed for sweeping the street and collecting garbage – as the locals had no objections to that. The Labour Court of Miskolc established that the lady was not employed in the canteen due to her Roma origin and by doing so the local council caused damages to the Plaintiff. The fact that the decisive factor in selecting among the applicants was their origin and no consideration was paid to the skills whatsoever per se substantiates that discrimination occurred, according to the Court. When deciding upon the amount of compensation the Court took into account that „the employer’s behavior might influence the value judgment of the local community”8. It also considered the fact that in 2004 and 2005 the Plaintiff was employed by the local council as „public benefit worker” (persons who are employed by state organs temporarily for simple jobs like sweeping), while the employment in the canteen was available for only a period of 2-3 months. In its appeal the Respondent stated that the Plaintiff did not suffer damage at all as she was later employed by the local council as street orderly. However, the County Court did not accept the argument that the job of a street orderly and that of a canteen assistant is assessed by the community similarly, as the condition of the jobs is different and a canteen assistant needs to have special individual skills. As the County Court agreed with the Local Court’s decision and its argumentation as well, the first-instance decision was upheld and became final and binding.
I. 3. On 11 April 2006, the court of second instance, the Court of Borsod-Abaúj-Zemplén County upheld9 the decision of Miskolc Town Court10 which ruled that the MÁV Rt. (the Hungarian State Railway Co.) is obliged to pay 500.000 forint non-pecuniary damages to its Roma employees respectively, who have been „outsourced” by collective staff cut, namely to Attila B. and Csaba B.11. According to the judgment the MÁV Rt. – in course of „outsourcing” – directly discriminated against its employees of Roma origin. During 2004, as a result of a Governmental decision, there was a great ax at the MÁV Rt. as a result of which many of the company’s employees in Sajószentpéter have been dismissed. During this procedure all the Roma employers have been dismissed from the maintainer division of the company. Two dismissed persons turned to our Office for help. Most of the employees dismissed had been employed for several decades and had the proper skill while there were non-Roma employees not sent away who had cattle breeder or carpenter qualification and had only two years service time. During the legal procedure more witnesses of Roma origin confirmed the
4 Due to the judgment No 8. Mf. 28.024/2004/3. of the Labour Court of Pest County the first-instance decision of the Labour Court of Pest County No. I. M. 471/2004/3. became final, which obliged a security company to pay 500.000 forint non-pecuniary compensation for not employing the Plainiff as security guard due to his ethnic origin. (For more information about the case see: White Booklet 2004. Case of Gyula Cs. 16-19. pp.) 5 Court of Borsod – Abaúj – Zemplén County judgement No 1. Mf. 20. 905/2006/3. 6 Labour Court of Miskolci judgement No 6.M.395/2005/18. sz. ítélete. 7 For more details about the case please see: White Booklet 2004. Case of L. Zsoltné 26 – 30. 8 Cites from the judgement. 9 Court of Borsod – Abaúj – Zemplén County judgement No 1. Mf. 20. 160/2006/4. 10 Labour Court of Miskolci judgement No 6. M. 160/2005/17. 11 For more details about the case please see: White Booklet 2005. MÁV Rt. 40-45.
7 Plaintiffs statement that in the concerned part of the railway company the situation of Roma employees had been far worse compared to their non-Roma colleagues even before the collective cut. The Labour Court of Miskolc established in its first instance decision of 28 November 2005 that in course of the dismissals the Roma employees had been discriminated. „In itself the fact that the decisive factor in selecting among the applicants was their origin and no consideration was paid to the skills or suitability whatsoever, per se resulted in the humiliation of the Plaintiffs and prevented them from remaining the employees of the MÁV, as the Court stated. Therefore in lack of any further evidence it can be established that the Plaintiffs have suffered damage.(...) The detrimental consequences of the violation of the requirement of equal treatment must be remedied, which in the instant case means paying non-pecuniary damages.” When deciding upon the amount of the compensation the Court paid attention to the fact that „the Respondents behavior could reinforce the Plaintiffs’ assumption that being a member of a minority group entails that their work was not evaluated equally compared to that of the non-Roma workers..”12
I. 3. In its judgment of 14 November 2006, the Labour Court of Miskolc13 obliged the MÁV Co. To pay 500.000 forint non-pecuniary damages to József A., Ferenc B., Zoltán B., Attila N., Viktor P. and Gábor V. respectively. These gentlemen were heard as witnesses in the above-described case, who also claimed compensation after the final decision had been brought in the proceedings. First they tried to reach a friendly settlement but the Company refused to come to an agreement despite the fact that two employees working in the same kind of position have already been awarded non-pecuniary damages for having been discriminated. As the attempts to reach out-of-court settlement proved to be unsuccessful, we submitted an action on behalf of the six employees to the Labour Court of Miskolc, requesting 500.000 forint compensation for the six Plaintiffs respectively. After establishing the same facts as in the previous case the Court decided for the Plaintiffs. The verdict is not final.
I. 4. On 7 April 2006,14 the County Court of Zalaegerszeg upheld the decision of 22 November 2005 of the Labour Court of Zalaegerszeg15 that obliged the Tesco Global Stores /Áruházak Rt./ Co. to pay 25.000 pecuniary and 300.000 forint non-pecuniary damages for not employing Katalin B., who is of Roma origin, in its mart of Zalaegerszeg.16 The Plaintiff applied for a cashier position but she was not recruited despite she proved her suitability concerning skill and health condition. The court of first instance explained among the arguments of the decision that the personal data and Roma origin that was visible on the photo that was attached to the documentation of her application corroborate that the reason for not recruiting the Plaintiff was her Roma origin. The Respondent appealed against the decision requesting the dismissal of the action as groundless. The Respondent pleaded that the Plaintiff did not fulfill its obligation deriving form the burden of proof and did not prove that reason for not employing her was her Roma origin. As to the burden of proof that lies with the Respondent, the Company presented that there was no one in a comparable situation with the Plaintiff compared to whom the Plaintiff was treated less favourably. The Court of second instance held the Respondent’s appeal to be unfounded. The Court pointed out that the disadvantages on the side of the Plaintiff resulting from not having been employed is obvious, and the Plaintiff stated her ethnic affiliation in the proceedings, and witnesses said that the Respondent new about it beforehand. As that is all that the Plaintiff has to prove under the burden of proof that lies with her, it was up to the Respondent to prove that he abided by the requirement of equal treatment. The Respondent submitted a motion for review to the Supreme Court which did not bring verdict yet.
12 Cites from the judgement. 13 Labour Court of Miskolc judgement No. 6.M.1364/2006/4.. 14 Labour Court of Zalaegerszeg judgementNo. 1.M.1135/2004/9. 15 Court of Zala County judgement No 4.Mf.2.245/2006/4.. 16 For more details about the case please see: White Booklet 2006.Case of Katalin B.
8 II. Decisions in lawsuits launched for discrimination in the field of public services
II. 1. On 12 April 2006, the Supreme Court, proceeding as the court of extraordinary review, repealed17 the final decision of the decision of the Regional Court of Debrecen18 and partly amended the first-instance decision. 19. The Regional Court of Debrecen, in its final decision of 28 October 2005, amended the decision of the Court of Szabolcs-Szatmár-Bereg County that obliged the manager of the Júlia Central Discotheque to pay non-pecuniary damages for not letting to enter twice the entertainment establishment the members of a Roma group. Ágnes R. of Roma origin who lived in Nagyhalászi where the disco was located wished to go have fun with her friends in the popular disco in April 2004. However, the security guard and the manager who arrived somewhat later told them that only those can enter who have a so-called frequenter’s card.20 Later our Office tested the disco in course of which the Roma testers from Ágnes’s group were not admitted – again referring to lack of the card, while the two other testers arriving right after them were let in without any problem. The County Court obliged the manager to pay 150.000 forint non-pecuniary damages to the Plaintiffs respectively and make restitution in a statement by disclosing the court decision in a well-noticeable place for a period of two months. The Court held that not letting the Plaintiffs enter the disco meant the violation of the requirement of equal treatment and offended human dignity. „The Respondent did not succeed in proving that it abided by the requirement of equal treatment” – stated the Court. The manager pleaded before the Court that he had thought the young people had been drunk, and this had been the reason for not letting them enter the place. The second time the reason was that they had had conflict previously. The testers could have entered according to the Respondent, but they themselves decided that they would not do so without the Plaintiffs. The Regional Court of Debrecen however shared the Respondent’s view and amended the first-instance decision. In the reasons of its decision the Court of Appeal expounded that „even if the Respondent was wrong to believe that the Plaintiffs were drunk, this does not entail that he discriminated against them on account of ethnic origin. The reason for the Respondent’s measure was that he perceived the Plaintiffs to be drunk.” With regard to the second case when the testing took place, the Regional Court explained that reference to the lack of frequenter’s card was „obviously false, it was just a pretence. Still, it cannot be logically derived from this fact what the court of first instance established, namely that the reason for rejecting admittance was the Roma origin.” Finally, the court did not accept testing as evidence because „the two Roma testers did not even try to enter separately”. We submitted a motion for review against the final decision because we believed that the court interpreted the evidentiary rules of the ETA incorrectly when accepting the Respondent’s explanation concerning the error in fact. The Supreme Court partially agreed with us. The Court held that in the case prior to the testing, when the reason for not admitting the complainants into the disco was that the Respondent thought the Plaintiffs were drunk, the breach of the requirement of equal treatment could not be established. However, the court of second instance was wrong when it failed to establish violation in the second case. There was no reasonable justification as to the Respondent’s behaviuor in the second case. In addition, the Court stated that irrespective of discrimination on grounds of ethnic origin it constitutes an offence to human dignity not to let in someone to an entertainment establishment that otherwise anyone can visit. Although we welcome the decision of the Supreme Court from the aspect that it established the violation of our clients’ human dignity as a consequence of the unlawful rejection of admission, we can not accept that according to the court the reason for the rejection was – in accordance with the Respondent’s pleading - the lack of frequenters’ card, and therefore the court did not come to establish discrimination on grounds of ethnic origin. As the decision elaborates – in our opinion erroneously – „at the second case the Respondent did not let the Plaintiff enter because they were not frequenters. However, the Plaintiffs could not become frequenters as they were not allowed to purchase entrance ticket(…).” We also found it strange that in case of the original complaint the court did not establish the violation of the requirement of equal treatment, while in the second case, which was an artificial situation due to the fact that it was a testing carried out in order to corroborate the original complaint, the court held the petition to be well-founded.
17 Judgment of the Supreme Court proceeding as court of review No. Pfv.IV.20.323/2006/6. 18 Judgment of the Regional Court of Debrecen No. Pf.II.20.513/2005/4. 19 Judgment of the Court of Szabolcs – Szatmár - Bereg County No. 1.P.21.752/2004. 20 For more details see: White Booklet 2004 Ágnes R. (discrimination in catering).Verdicts: Judgment of the Court of Szabolcs – Szatmár - Bereg County No. 1.P.21.757/2004/26., Regional Court of Debrecen No. Pf.II.20.513/2005/4.
9 With regard to the compensation, the Supreme Court shared the argumentation of the court of first instance and held that for the purposes of compensating for the violation of inherent rights the institution of non- pecuniary damages is a suitable tool. However, the Supreme Court reduced the amount of compensation arguing that the Respondent did not commit systematic violation as „just one discriminatory behaviour was proven”.
10 III. Decisions in discrimination cases related to access to health care
III. 1. On 7 September 2006, 21 the Metropolitan Court dismissed our action requesting to establish that the Respondent, a health care institution, violated the requirement of equal treatment by refusing to provide our client Éva B., 22 with medical care. As presented in the action, the medical care of Ms Éva B. was denied in a dentistry in Budapest in April 2005, when they realized from the medical records that the lady of Roma origin was infected with virus Hepatitis C. Prior to this incident the patient visited the dentistry many times, but this was the first occasion when she was not healed. The tone used during the rejection was offending and hurtful and the case tried the lady very much. Apart from establishing the breach of law we requested the Court to oblige the Respondent to pay 500.000 forint non-pecuniary damages and to ask for the Plaintiff’s pardon on behalf of the dentist on duty. The Respondent told before the Court that in accordance with the guidelines regulating the medical attendance of patients with infectious diseases these patients can only be treated at the end of the shift. The dentist on duty and his assistant claimed correspondingly that at the time of the incident they told to the Plaintiff that she would be treated at the end of the shift because of her infectious disease. It was the Plaintiff herself to decide not to go back to the dentistry at the end of the shift. As opposed to this version, the Plaintiff consistently asserted that her medical treatment was rudely refused by the dentist that was corroborated by the Plaintiff’s friend statement who was also heard in the proceedings as witness. As she, the friend, told she could hear standing behind the door that was half-open that the dentist sent away the Plaintiff referring to her illness. In the judgment dismissing the case the Court explained that „as the Respondent consistently denied to have discriminated against the Plaintiff, pursuant to the Acts already mentioned23 it is up to the Plaintiff to prove that discrimination occurred.” In our opinion the incorrect interpretation of the pertinent rules was the result of that consideration that according to the Court „the Respondent cannot be obliged to prove negative facts (…). Therefore the Plaintiff has to prove the occurrence of discrimination”. As the Court also emphasized, it posed a serious problem that were no disinterested witnesses in the case. The dentist was the boss of her assistant, while the witness corroborating the view of the Plaintiff was her friend. Under these conditions the Court came to the conclusion that the Plaintiff should have proven her assertion, and in lack of enough evidence the action had to be dismissed. In our appeal submitted against the decision we explained that according to our opinion the Court established the facts partly incorrectly, and drawn incorrect legal conclusions from the facts. As per the special evidentiary rules foreseen by the ETA24 the burden of proof shall be split between the parties. However, according to the judgment of the Metropolitan Court, considering the denial of the Respondent the Plaintiff should have proven all the facts in the case. As opposed to this view we think that the Plaintiff did prove all the things she had to prove under the relevant rules, as the fact that she was not given medical treatment, that means she suffered disadvantage, was not challenged in course of the proceedings. Similarly, the Respondent did not challenge that the Respondent belonged to the Roma minority group, and in addition, due to her medical status she has other protected characteristic specified by the ETA. After proving all these the Respondent should have proven to have abided by the requirement of equal treatment or that he was not obliged to do so. As elaborated in the appeal, we are convinced that – as opposed to the argumentation of the first-instance decision – the Respondent should not have proven a negative fact. He should have provided a legally acceptable explanation for his behaviour since the Respondent himself did not dispute the fact of having violated the requirement of equal treatment by not providing medical treatment for the Plaintiff. The court of appeal did not schedule the date of the first hearing yet.
21 Judgment of the Metropolitan Court No. 19.P.630.545/2005/8. 22 For more dteails about Éva B’s case see: White Booklet 2005. Éva B’s case. 74 – 78. pp. 23 Article 19 (1) of ETA, Article 164 (1) of Code on Civil Procedure 24 Under Article 19 (1) the Plintiff has to prove that he/she suffered disadvanteged and has the protected charateristic specified by the Act. Having proven that the Respondent shall have to prove that he or she did respect the requirement of equal treatment or was not obliged to do so.
11 IV. Decisions in proceedings related to housing
IV. 1. On 13 September 2006, the partial verdict of the Metropolitan Regional Court25 partly upheld the judgment of the first-instance court26. The Court established that the II. District Local Council violated the human dignity of the Plaintiffs who were unlawful tenants when the Local Council ordered their eviction under inhuman conditions. Regarding the other parts of the first-instance judgment the Court ordered retrial. The judgment of the Metropolitan Court proceeding as first-instance court, delivered on 18 October 2005, was brought in a case launched for an eviction in Budaliget. In course of the eviction almost 40 persons, of whom there were 2 pregnant women and more than 20 children, were forced to leave their home and live on the street.27 The antecedent to the case was that the II. District Local Council leased a closed recreational area where the leaseholders built stone and wooden weekend houses. The Council terminated the lease in December 2000 without taking any measures toward taking possession of the houses. Following termination of their leases the earlier leaseholders entrusted a number of Roma families with the care of the buildings who escaped from the countryside where the unemployment rate was extremely high to the capital. On 12 August 2002, a representative of the II. District Local Council requested the twelve families living in Budaliget to vacate their homes by 8 am next day. The representative did not hand over any written notice, did not specify the legal basis for the eviction and did not produce a court ruling or a decision by the notary as a legal basis for the action. The demolition of the house started at 8 am the following day. On that day it was pouring with rain, the temperature was around 16 degrees Celsius. The families, including their children, were forced to stand in the cold rain all they and watch the demolition of their homes. The court of first instance explained that „the lack of the lawful procedure in itself violated the Plaintiffs’ rights. This violation was the breach of the constitutional provision for the equal treatment […] In the instant case the Plaintiffs’ human dignity was violated by the fact that the Respondent had not initiated such procedure against them as it did in case of other citizens, and only orally requested them to leave the area on the very day when the eviction was executed […] It is also humiliating that the Plaintiffs were forced to watch the demolition of their homes. Irrespective of the fact whether a person living in a house has any legal basis for the possession, the view of the demolition of the environment where he lived in a certain part his/her life causes serious emotional injury, as proper housing is a fundamental need of human beings.”28 In the operative part of the judgment the Court obliged the Respondent to pay 100.000 forint non-pecuniary damages to the nineteen Plaintiffs respectively. The second-instance court stated in its partial verdict that the court of first instance correctly evaluated the obtained evidence and came to the conclusion that the way the Respondents were evicted from their homes, that they possessed for a long time without any legal basis, violated the Respondents’ human dignity. However, the court of appeal objected to it that in spite of the fact that the Respondents did not submit any evidence to substantiate the amount of non-pecuniary compensation; the court awarded 100.000 forint to them. On the basis of the available data the court of first instance did not inform the Respondents that they should prove the occurrence of non-pecuniary damages. The hearing is scheduled for February 2007.
IV. 2. We concluded a friendly settlement in the procedure that we initiated against a company that displayed a racist housing advertisement on the Internet. On 11 July 2005 the following advertisement was published on a website: “A 50 square meters flat with 1.5 rooms, in Óbouda is to let. The house was built in 2002, has a huge garden. No furniture. Disqualifying reasons: animals and colour-skinned people.” The advertisement was published by a real estate agency that caught the eyes of the journalists of one of the national television channel. We took an actio popularis action against the agency for the violation of the requirement of equal treatment. We requested the court to oblige the Respondent to put an end to the unlawful behaviour and to pay 200.000 forint fine to be used for public benefit purposes. The representatives of the agency offered a proposal for agreement that the Office accepted taking into account that the advertisement had been withdrawn from the website before the procedure was commenced. According to the agreement the Respondent displayed a text on the same website with the same format and size as the unlawful advertisement apologizing for having displayed a housing advertisement on 11 July 2005 that violated the inherent rights of people with coloured skin.29
25 Metropolitan Regional Court judgment No. 7.Pf.20.742/2006/3. 26 Metropolitan Regional Court judgment No 26.P.24.118/2005/7. 27 For more details see:: White Booklet 2002, Budapest II. District (Violation of inherent rights by local government). 28 Cites from the verdict 29 The agrrement was confirmed by the court. The case was adjudicated by the Metropolitan Court under 16.KP.631.984/2005/7.
12 13 V. Decisions in proceedings launched for compensation
V.1. A In its verdict delivered on 17 May 2006, 30 the Supreme upheld the final judgment of the Metropolitan Court31, against we previously submitted a motion for review.
The Metropolitan Court delivered its final decision on 24 November 2005 in which the court amended the first- instance decision of the Central District Court of Pest32 that obliged the Hungarian government to pay 1.400.000 forint non-pecuniary damages and its interest calculated form August 2004 to Attila V. and Oszkár V. 33 respectively. The second-instance decision reduced the amount of compensation to 1.000.000 forint. Attila V. and Oszkár V. spent almost five months in pre-trial detention after the court acquitted them due to lack of evidence. They both were charged of having committed a group robbery and the bill of indictment was also submitted by the prosecutor. The police caught the two Roma people after a young couple that was robbed gave a personal description to the police officers saying the perpetrators were probably Roma. It was also strange about the case that in the same part of the town other robberies were committed with the same method after the two Roma suspects were taken into pre-trial detention. In the proceedings for compensation launched after the suspects were acquitted by the criminal court, the first-instance court awarded 1.000.000 forint non-pecuniary damages for the emotional injuries suffered, and 400.000 forint pecuniary damages for their loss of income. Although the Plaintiffs did not have registered job they could prove with witness statements that they regularly worked in construction places illegally. The court of first instance accepted as a commonly known fact that most of the construction workers do not have registered job. The court also accepted the relatives’ statement that the Plaintiffs had real estates that they maintained and that both of them raised children. Consequently they must have had regular income. Taking into consideration all these facts the court established the loss of income according to the minimal statutory monthly wage. But the Metropolitan Court shared the Respondent’s argumentation presented in the appeal according to which the way the first-instance court weighed evidences was unreasonable because neither the fact that the Respondent had had job nor his income was substantiated. Therefore the court of second instance amended the first-instance judgment regarding its decision on the pecuniary damages. The court explained that „in light of the consistent judicial practice only the lawfully earned income may serve as basis for compensation. (...) Ignoring the legal rules pertaining to casual work entails that the employer has to count on the possible sanctions that can be imposed on him, while the employee can not refer to the income earned from such legal relationship before the court. The court may not legalize the unlawful situation by awarding compensation for loss of income in such cases. The unlawful situation cannot serve the interests of the Plaintiff.” Our Office had concerns about the decision and submitted a motion for review against it, because – agreeing with argumentation of the first-instance court – we think that in course of the proceedings for compensation the loss of income from „black work” (unlawful labour relationship) has to be awarded as well. We elaborated in our motion that we think the judicial practice is discriminatory if it regards only the „official” income as loss which can be referred to in a proceedings for compensation. In a case for compensation the judge is not entitled to decide whether the job of those who do not pay or after whom the employer does not pay taxes merit compensation or not. All the more so since the social group which is most affected by „black work” would get into such situation because the employee does not register them and does not pay the taxes since they are marginalized and helpless and unable to assert their interest. Black work is the consequence of the employer’s unlawful action, therefore it is a serious mistake to sanction the employee in course of compensation procedure for other’s unlawful behaviour. The Supreme Court, proceeding as Court of Review, set forth that the argumentation of the second-instance court concerning the possibility of awarding compensation for the loss of income from „black work” was wrong because there is no legal provision prescribing that the injured party may not request the loss of income from casual work before the court. Still, the Supreme Court held that our motion was unfounded because „the Plaintiffs did not state before the Court who their employer was, for how long time they worked for and how much their salary was. Therefore the decision of the judgment to be reviewed is well-founded concerning the dismissal of the request for pecuniary damages.”
30 Judgment of the Supreme Court No. Pfv.V.20.591/2006/5. 31 Judgment of the Metropolitan Court No. 41. Pf.25.122/2005/2. 32 Judgment of the Central District Court of Pest No. 13.P.22.202/2004. 33 For more information on the case Attila V. and Oszkár V. see: White Booklet 2004. 46 – 50. pp.
14 VI. Decisions in proceedings launched for the violation of inherent rights
VI.I. On 7 December 2006, the Regional Court of Debrecen34 upheld the judgment of the County Court of Hajdú-Bihar delivered on 2 December 2005, 35 which ordered the Mayor of Bagamér to pay 250.000 forint non- pecuniary damages to the president of the local minority government. József R., the head of the Roma minority council launched proceedings against the local mayor because the mayor publicly insulted and abased him several times, also in connection with his Roma origin..36 The Court established that the mayor violated the Plaintiffs reputation, integrity and human dignity; therefore – besides ordering to put an end to the violation and to pay non-pecuniary damages – the Court ruled that the mayor publish the operative part of the judgment and his apologies in a local paper. The Regional Court pointed out that the county court was right to accept the Plaintiff’s claim as a commonly known fact without any further evidence due to the Plaintiffs position and his role in public life. The Court emphasized that obliging the Plaintiff to prove the injuries suffered would also be humiliating since the violation committed by the Respondent affected the Plaintiff’s emotional approach to his environment.
34Judgment of the Regional Court of Debreceni No Pf. I. 20. 461/2006/5. 35 Judgment of the Court of Hajdú-Bihar County No 5.P.21.106/2005/6. 36 For more information see: White Booklet 2005, József R. (violation of inherent rights).
15 VII. Decisions in proceedings launched for violent crimes committed against Roma
VII. 1. A In its judgment delivered on 24 October 2006,37 the Court of Nagyatád pronounced Mihály L. Péter guilty in having committed serious bodily harm and vandalism. As per the reasoning of the decision, on 17 August 2005 at 5 pm our client, Péterné B. 38 of Roma origin and her relatives went to a filling station, bought some meal, sat down on a bench and started to eat. The defendant arrived at the station, took off his T-shirt, jumped on the bench and shouted: „You stinky Gypsies, you won’t eat here!”. He kicked the pieces of meals on the table about and jumped off. Seeing that the injured aggrieved party and her family got frightened and stood up, meanwhile the defended told them to leave and kicked into the thigh of the victim. The victim and her relatives ran away from the scene leaving the meals and their bicycles behind. Afterwards, the defendant had a quarrel with Péter B., the husband of the aggrieved party, who, seeing the bicycles left unattended, questioned the employees of the station. As a result of the quarrel Péter B.’s nose got broken causing serious bodily harm. With regard to the time, place and the way the crime was committed it was suitable to cause indignation. For having committed these two crimes the Court sentenced the defendant to pay a fine of 100.000 forint. The decision is final as neither the prosecutor nor the defendant appealed.
37 Judgment of the Town Court of Nagyatádi No. 5.B.72/2006/9. 38 For more information about Péterné B’s case see: White Booklet 2006.
16 VIII. Decisions in proceedings launched for crimes committed by police officers in official procedure
VIII.1. On 21 March 2006, 39 pronounced László F. István, Krisztián V. and Lajos K. László (police officers) guilty in having committed forced interrogation and easily bodily harm as accomplices. As a cumulative sanction the Court sentenced the defendants to one-year imprisonment suspended for two years respectively. The police officers went to the home of Sándor L. 40 of Roma origin on 28 December to order him to go to the police station. As it turned out the other day morning, they wanted to question him about a theft (of some meat), but he denied. As it can be read in the court’s judgment the police officers believed that the fish and meat had been stolen by Sándor L. because „their contact person living in the local gypsy settlement” told them that he had seen when meat and fish was taken into Sándor L’s home. The defendant in the first degree found this piece of information relevant because „as far as he knows Gypsies usually do not eat fish”. 41 According to the aggrieved party’s statement he was beaten by the police officers several times in order to compel him to confess. The police officers also told him that one cannot make ends meet from the 26.000 forint state allowance, therefore they are sure that he has committed the theft. „Then the aggrieved party asked whether was to be a criminal just because he was poor?”42 Afterwards, according to the facts established by the court, the police officers suggested Sándor L. to confess because due to his clean criminal record he would only get a fine of 20.000 forint. In spite of the beatings and the emotional influence Sándor L. persistently denied and after the event that lasted for 2.5 hours he reported the crime committed by the police officers. The prosecutor filed the bill of indictment on account of forced interrogation and other crimes. The Court established in the judgment that the defendants have ill-treated the aggrieved party being aware of each other’s activity in order to make him undertake a theft. The ill-treatment also resulted in easily bodily harm. The judgment is not final.
VIII.2. On 14 November 2005, the Military Tribunal of the County Court of Somogy cleared Norbert I., Gábor V., Bertalan Sz., Zoltán S., Szabolcs K., Csaba K. Anett D. and Tamás Sz. police officers of the charges of having committed breach of service duty, unlawful detention committed as accomplices, ill-treatment in official proceedings and easily bodily harm due to insufficient evidence According to the charges the defendants, at 10.30 pm on 31 January 2004, left the K. city without permission. They visited Rudolf R. of Roma origin43 in the neighboring settlement by a van, a police service car. They shackled him, forced him on the floor of the van and many of them ill-treated Rudolf R. with their legs, hands and truncheons. Mr. Rudolf suffered injuries healing up within 8 days. Afterwards the defendants left the scene and went back to their place of duty. In course of the criminal proceedings the defendants did not admit the offense and only made testimony in writings. Contrarily, the injured party consistently stated in his report, before the police and the court that he had been taken away in handcuffs from his place on the night mentioned above by police officers wearing blue uniform and mask, he had been ill-treated while in the van. He stated that after the ill-treatment he was forced out of the van and left there. He recognized to of the defendants. As the court pointed out, the aggrieved party’s story is realistic that contains real events. The story and the credibility of Rudolf R. were corroborated by several testimonies. According to the forensic medical expert examining the aggrieved party such injuries could not be caused to oneself while they could be suffered in the way told by Rudolf R. It could also be established on the basis of two testimonies on 31 January 2004 Rudolf R. went home from work with his colleagues without having any injuries on his body. Taking into consideration all these facts the court held that it could be established beyond reasonable doubt that Rudolf R. did suffer the crimes committed against him as stated in the bill of indictment. However, the perpetrators could not be identified. Although the aggrieved party and his partner made a categorical statement as to whom they recognize as perpetrators, the court held that with regard to the mask wore during the offense this recognition is problematic. The forensic opinion on the comparison of the cotton-samples obtained from the clothes wore by the aggrieved party on the night of the offense to the samples found in the service car was not a decisive evidence either, because according to the expert opinion it could only be rendered likely that the samples were identical.
39Judgment of the Szabolcs – Szatmár – Bereg County Court No B.432/2005/16. 40 For more information about Sándor L’s case see: White Booklet 2005. Case of Sándor L. 91 – 95. pp. 41 Cites from the verdict 42 Cites from the verdict 43 For more information about Rudolf R’s case see: White Booklet 2005. 84 – 85. pp.
17 The court held that the aggrieved party also contributed to the failure of the identification of the perpetrators. Rudolf R. did not trust in the criminal justice system therefore first he turned to publicity and only reported the case to the police after the articles had been published. The fact that the report was filed too late rendered it more difficult to identify the perpetrators and to secure the traces or obtain evidence. In addition, the court stated that „the unsuccessful identification of the perpetrators was also a result of the so-called internal investigation carried out by certain senior police officers that lacked objectivity and impartiality, the aim of which was primarily not to find the perpetrators but to discredit the aggrieved party”. Related to this issue it cannot be ignored that the service car was cleaned and washed for inexplicable reasons which prevented the record of the traces. The not really professional measures carried out by police officers ordering the investigation, the way the spot inspection has been implemented, the job of the prosecutors related to the inspection of the service car must also be mentioned as key factors in this regard.”44 The judgment was upheld by the court of appeal.
VIII. 2. On 28 September 2006, the Court of Tolna County cleared István Sz. and Gergely F. of the charges of having committed serious bodily harm as accomplices and ill-treatment in official procedure due to insufficient evidence. According to the facts established by the court, on 18 June 2005 in course of carrying out a routine ID check in a pub, two police officers of the special operational department of the Police Headquarters of Tolna County escorted the aggrieved party to the service car parking in front of the pub because the person checked did not have the required documents with him. At this time it turned out that the person checked was the one who submitted a complaint against the police officer taking the measure because the police officer and some of his colleagues have ill-treated the aggrieved party’s uncle in course of a previous police action.45 When the aggrieved went back to the pub after a while the guest saw that he had pain. On being asked what had happened he answered that he had been ill-treated. As his health status deteriorated he was taken to a hospital by ambulance. The diagnosis was that one of his ribs was broken which would heal up within more than 8 days. In the argumentation of the judgment acquitting the alleged perpetrators the court emphasized that „the court is not in position to correct the deficiencies of the written bill of indictment that was not amended during the whole procedure.” Besides the shortcomings of the bill of indictment the forensics did not agree whether the injuries of Géza S. could be sustained in a way the aggrieved party described the incident, which also happened to be inconsistent sometimes. The defendants told that Géza S. fell off the stairs that’s how he sustained the injuries. The colleagues of the police officers who have worked nearby the pub on the day concerned also corroborated that Géza S. had fallen off the stairs. At the same time many of the friends of the aggrieved party who were in the pub during the incident told that traces of palm were visible on Géza’s face after the police action. The court pointed out in the judgment: „it is important to emphasize that the result of the evidentiary procedure in the instant case is not that the testimony of the aggrieved party proved to be objectively false. What happened was that in light of the evidence assessed there were doubts about it, while the defence presented by the defendants could not be objectively refuted.”46 The prosecutor submitted an appeal against the judgment but withdrew it later, therefore it is final.
44 Cites from the verdict 45 For more information about Géza F’s case see White Booklet 2005. case of Géza F. jr. 84 – 91. pp. 46 Cites from the verdict
18 ANTI-DISCRIMINATION TRAININGS
19 I. Training for judges
Under a two-year international program our Office received the opportunity and financial support from the European Committee to organize training for judges with respect to human rights and anti-discrimination legislation and its practical implementation. The program is led by the European Training and Human Rights Research Center having its seat in Graz, with the participation of Slovakia, Slovenia and Austria as well. The program started in December 2004 and closed in November 2006.
The target group for this training was judges acting in labor and personality rights litigation affected in the implementation of the Equal Opportunity Act, who could extend their knowledge about the implementation of the new Act as well as the related community directives (43/2000 and 78/2000 EC Directives). As the National Council of Judiciary is responsible for the training of judges in Hungary, we concluded an agreement of cooperation with the Council. Under the agreement our training constituted a part of the official training of judges therefore we were allowed to hold our trainings within the framework of seminars and conferences organized by the Council.
In 2005 judges were trained twice. In April, in course of a 2-day seminar for judges acting in labour-related cases, we devoted a whole afternoon for the overview of the ETA and its practice. Unlike in usual trainings our aim was to provide an opportunity for every participant to raise relevant issues and to discuss them by analyzing and solving fictitious cases. On this day we trained 75 judges who, according to the feedback received from them, were satisfied with the training.
In October 2005 we held a similar training, this time the target group was judges acting in personality and inherent rights litigation. Besides discussing fictitious cases the participant heard lectures on the ETA and the operation of the Equal Treatment Authority. The event was attended by 70 judges from all around the country.
As a part of the project we have prepared an anti-discrimination website that might serve as a professional database for those applying the anti-discrimination law (judges, civil servants, attorneys, NGOs). The website contains the relevant domestic and international caselaw, the legal rules, bibliography and other important information.47
II. Training for the staff members of labor centers and employers
Between April and June 2006 by the assignment of the Pécs Regional Training Center (PRKK) our staff held training for the employees of labor centers and employers. The aim of the residential course was to make the participants sensitive regarding equal opportunity, to help them to get their own experience about the working mechanisms of prejudiced and stereotyped thinking, finally to experience, to live through the effects of discrimination. Beside the practical part providing personal experience they had the opportunity to get acquainted with the local and international legal environment on the prohibition of discrimination.
During the program lasting for more than two months our staff held the abovementioned anti-discrimination training for 120 persons, according to the feedbacks, with great success. Due to this the PRKK concluded a framework agreement with the NEKI stipulating that in case financial sources make it possible to continue with the training the PRKK counts on our involvement.
47 http://antidiscrimination.etc-graz.at/.
20 PUBLICATIONS
21 I. White Booklet 2005
As in every year, we published our annual report, the White Book this year as well. New element to the publication summarizing the year 2005 was that at this time we reviewed those court verdicts in detail, which appeared in that year based on cases started previously. We also undertook to prepare statistics for the last ten years in such a form that the occurrence of the different discrimination case types between 1995 and 2005 can be traced.
II. Commentary to the ETA
In May 2006, by the collaboration of two civil organizations – Helsinki Committee and the Háttér Support Society for LGBT People – and NEKI, a comprehensive study was prepared as a commentary to the Equal Opportunity Act. The paper, which was written by four authors, analyzes the provisions and principles of the act in detail. This document at present can only be accessed through our homepage, but we plan to publish it as a publication as well, aiming at a wider range of public.48
III. The national and international practice of situation testing
A study book was also prepared in May 2006 in Hungarian and in English, which processes the Hungarian and international practice of situation testing. The significance of this paper is that it was the first to process and review this method of revealing covert discriminations. The document is available on our homepage in English and in Hungarian.49
48 www.neki.hu 49 www.neki.hu
22 EMPLOYMENT
23 Case of Katalin B.
In the autumn of 2004, Katalin B., a Roma woman from Zalaegerszeg, together with a non-Roma woman who was a friend of hers applied for a job of a cashier at the local TESCO supermarket, due to a job-advertisement. This was not the first time she tried to get a job at this company and since she had been interviewed before, this time she only had to take part at a medical examination of admissibility. The head of the department of personnel promised to employ both of them, but some days later only her girlfriend was called to work at the company. Katalin B. turned to court, because her opinion was that she had been refused due to her Roma origin. Under the final judgement of April 2006, the employer violated the requirement of equal treatment during the job-application process. Thus the court obliged the company to pay both pecuniary and non-pecuniary compensation. The supermarket submitted a motion for review to the Supreme Court.
In the autumn of 2004, the supermarket of Tesco Global Áruházak Rt.50 (Tesco Global Supermarkets Plc.) advertised the job of a cashier. Katalin B. – with Roma origin – applied for this job, with a non-Roma female friend of hers, Anikó Sz. Katalin B. finished her studies in a secondary vocational school of commerce as grocery shop assistant. The staff manager took care of the job-application process from the company’s side and she declared that she would employ both of them, moreover, she would prepare the work-schedule in a way that they would be able to watch for each other’s children. She also told them to drop in the following week for the work uniform and the keys of the dressing locker, so they could start working on 1st December. Since they both passed the entrance exams beforehand, they only had to undergo the medical examinations of admissibility in order to start working. The examination was finished that day and both of them were found admissible. They would have liked to submit the certificate that very day, but they were informed by the staff department that they had to take the papers with them only the following week.
On 24th November 2004, the two women were together when Anikó Sz. got a phone-call from the supermarket telling her that she can start working on 29th November. She asked whether it concerns both of them, but the answer was that it only regards her. Notwithstanding, Katalin B. went to the supermarket to inquire, where the staff director simply told her that TESCO does not want to apply her. According to the complainant, the director stated in a loud voice that “they must watch out for whom they employ”.
On 10th December 2004 Katalin B. received a “panel-letter” from the supermarket written in a polite manner, informing her that her application had been rejected. Katalin B. considered this process unjust and degrading, so she turned to an attorney-at-law. On 22nd December 2004, they launched a civil action before the Labour Court of Zalaegerszeg, pleading for the declaration of the fact that the employer had violated the requirement of equal treatment by not having employed Katalin B. because of her origin. They also claimed that the court oblige TESCO to pay Katalin B. pecuniary compensation equalling six-month average salary and non-pecuniary compensation of 300.000.- HUF. In the petition they referred to the Labour Code (hereinafter: LC), under which,
50 Regarding the fact that a final judgement was reached in the case, news about which was broadcasted and published, we hereby also name the Respondent.
24 the requirement of equal treatment also applies to employment.51 It is also the LC that declares that the consequences of the violation of the requirement of equal treatment shall be remedied in a suitable way, thus the injured party is entitled to claim compensation.
Several hearings were held in the case, the court heard the Plaintiff, the Plaintiff’s female friend and also the employees of the Respondent. The staff manager of TESCO confirmed what the Plaintiff and her girlfriend stated. Furthermore, she explained that although she did take part in the selection of employees, the selection fell under the competence of the director of personnel. Answering the question of the court, she also said that this was the first time that a person whom she recommended did not get the job ever since she had been working for TESCO. The court heard the director of personnel as well, who related that the number of those whom he had met before the signing of the contract of employment was practically insignificant. Moreover, the director referred to the circumstance that they did not employ Katalin B., because no interview had been made with her and he had not seen the former file due to previous sorting out. The court did not accept these statements. The reason for this – among others – was the fact that the Respondent itself presented the file of the interview to the court. The statements of the director were in contradiction even with each other, because first he said that according to the information he got from the administrators, no interview had been made with the Plaintiff, but later he stated that the head of the department informed him that the Plaintiff had been interviewed in 2003.
In its judgement of 22nd November 2005, the Labour Court of Zalaegerszeg established that pursuant to the Equal Treatment Act (hereinafter: ETA)52, the employer treated Katalin B. less favourably because of her ethnic affiliation and thus caused her pecuniary and non-pecuniary damages. The court reduced the amount of pecuniary compensation to 25.000.- HUF, whilst it settled the amount of non-pecuniary compensation in compliance with the petition. The amount of pecuniary compensation was reduced, because due to the evidence it appeared that the Plaintiff would have been employed for a definite period, namely one month, around Christmas.
According to the reasons of the judgement, under the Civil Procedure Act (hereinafter: CPA)53, the enforcement of a claim based on the negotiations preceding the concluding of the contract of employment qualifies as a labour suit. Regarding the process of obtaining a job, the ETA determines the direct or indirect discrimination of employees as one of the most significant breach of the requirement of equal treatment.54 It is direct discrimination when the party whose rights are violated is treated less favourably than other persons in a
51 Art. 5 (1) The requirement of equal treatment shall be respected in connection with employment. (2) The consequences of the violation of the requirement of equal treatment shall be remedied in a suitable way, which may not lead to the infringement or derogation of other employee’s rights. 52 Act 125 of 2003 on Equal Treatment and Equal Opportunities 53 Act 3 of 1952 on civil procedure Art. 349 (2) Pursuant to par. (1), the following qualify as labour suit: a) a suit pertaining to the negotiations preceding the concluding of the contract of employment and to rights deriving from the employment after the termination of the employment, 54 ETA Art. 21 It constitutes a breach of equal treatment especially if the employer directly or indirectly discriminates the employee, especially when defining or applying the following regulations: c) during the phase of creating or terminating relation of employment or other legal relation pertaining to work;
25 comparable situation because of a characteristic protected by law.55 In case of Katalin B. the fact that she did not get the advertised job qualified as less favourable treatment. TESCO submitted an appeal against the judgement and requested the dismissal of the case as the petition – from its point of view – was groundless. The appeal was founded on the circumstance that the Plaintiff did not fulfil its obligation of proof by not proving that she had been refused because of her Roma origin. According to the burden of proof on the side of the Respondent, it declared that there was no person in a comparable situation, in comparison with whom the Plaintiff would have been treated unequally. The female friend of the Plaintiff may not be such a person, because she had worked for the Respondent before, unlike Katalin B. The appeal also contained details of the appeal process and stated: it was not proven that anyone had ever promised the Plaintiff that she would be employed from 1st December 2004.
The complainant asked for the help of our Office during the appellate proceeding. In this phase of the process, we ensured a legal representative – dr. Erika Muhi – for the Plaintiff. In its cross-appeal the legal representative of the Plaintiff requested the court of second instance to uphold the sentence, because – according to her standpoint – it was well-grounded both from the legal and the factual point of view. She also explained that the Plaintiff had fulfilled its obligations deriving from the burden of proof, since pursuant to ETA, the Plaintiff had to prove that she is in possession of one of the protected characteristics listed in ETA and that she suffered disadvantage.56 During the proceedings the Plaintiff declared that she was of Roma origin and taking into account the judicial practice, no more evidence was needed to prove this circumstance. According to the Minority Act (MA), everyone has the right to declare that he/she belongs to a minority.57 Our opinion is that the court might have conducted a proceeding of evidence in connection with this circumstance only in case the Respondent had argued against the origin of Katalin B.
The Plaintiff also fulfilled its duties under the burden of proof concerning the disadvantage, since no-one challenged the fact that she was not employed, so she had no work and income.
According to ETA, it is the obligation of the Respondent to prove that it observed or was not obliged to observe the requirement of equal treatment.58 However, when advertising a cashier-job, the supermarket is obviously obliged to act in compliance with the requirement of equal treatment and Katalin B. met the professional requirements as well. As far as the standpoint of the Plaintiff is concerned, TESCO did not comply with its
55 ETA Art. 8 Direct discrimination: direct discrimination shall be constituted by any action as a result of which a person or a group based on its real or assumed sex, racial affiliation, religion, health condition etc. is treated less favourably than another person or group in a comparable situation. 56 Art. 19 (1) In the course of procedures launched due to the breach of requirement of equal treatment the injured party or the organisation entitled the bring a popularis actio claim must prove that a) the injured party or group has suffered disadvantage, and b) the injured person or group possessed – de facto or to the assumption of the perpetrator – the characteristics specified in Article 8 of ETA. 57 Act 77 of 1993 on the Rights of National and Ethnic Minorities Art. 7 (1) It is the exclusive and indefeasible right of the individual to claim that he/she belongs to a minority. 58 Under Art. 19 (2) of ETA, in case the circumstances laid down in par. (1) has been proven, the other party has to prove that a) it observed, or b) in respect of the legal relationship concerned was not obliged to observe the requirement of equal treatment.
26 obligations deriving from the burden of proof, given that during the proceedings it was revealed that its answer to the Plaintiff’s petition – stating that it was merely a mistake that happened – was not true. The manager in charge was aware of the fact that the Plaintiff had been interviewed before. The answer of the Respondent was not realistic as well, because the interview always comes before the medical examination. Namely, only those are sent to medical examination – as the final check –, who have met all the other conditions.
In its appeal, the Respondent states that Anikó Sz. was not in a comparable situation with the complainant for the reason that she had previous experience as a cashier. This may even serve as the basis of exoneration, but it is a fact that not only Anikó Sz. got a job in the supermarket in this period. It was revealed due to the interrogation of witnesses, that six persons were employed at the same time, therefore there were other persons in a comparable situation as well. “What the Respondent states in its appeal might be accepted as exoneration if in the course of the first instance proceedings it would have proven concerning all the six persons who got employed at that time, that they all had previous experience. Due to not having done that, it did not fulfil its obligations deriving from the burden of proof, therefore the decision of the Labour Court of Zalaegerszeg was legally well-grounded, stating that the Respondent violated the requirement of equal treatment.”59
The County Court of Zala, as the court of second instance, upheld the judgement of the court of first instance in its decision of 7th April 2006. The reasoning of the judgement especially deals with the medical examination as the third stage of the job-application process outlined by the Respondent. “With sending the Plaintiff to medical examination, the manager of the Respondent declared the Respondent’s will to employ the Plaintiff. (Besides, it also makes it probable that the Respondent considered the previous step, the interview completed, due to the interview that had taken place beforehand.) This reason makes the Respondent’s statement that the staff manager met the Plaintiff on 9th November 2004 in order to make the interview, untrustworthy.”60
TESCO paid the compensation to our client according to the final judgement of the court, although, it submitted a petition for review to the Supreme Court of the Hungarian Republic on 20th July 2006.
In its petition for review the Respondent requests to repeal the judgement of second instance and to uphold the judgement of first instance and also to dismiss the case. However, the greatest problem with the petition is that both courts adjudicated according to the action lodged by the Plaintiff! At the same time, the Respondent requests to dismiss the case which is only possible if the Supreme Court repeals the judgement of the court of first instance and the court of second instance as well. According to the Respondent’s standpoint, the final judgement violates the rules of ETA concerning the burden of proof, employment and direct discrimination. The Respondent’s opinion is that the employer was allowed to inform only the Plaintiff of the result of the application, thus whatever information was shared between Katalin B.’s female friend and the employee of the company on the phone, is not relevant at all. Pursuant to the petition for review, Katalin B. did not wait for the official notification of the result of the application; she asked for the help of an attorney-at-law beforehand and insinuated the employer with discrimination without any reason. The legal representative of the Respondent also
59 Extract from the cross-appeal dated 30th March 2006. 60 Extract from the judgement of the County Court of Zala dated 7th April 2006.
27 states the Respondent was not in the possession of the result of the medical examination, since the Plaintiff did not provide this document, therefore there was an objective reason for not employing the Plaintiff. During the consultation with the staff manager, the argument that Katalin B. is not suitable for the job of a cashier, because she is “not polite and patient enough”, also arose. These altogether are such reasons which disallow the employment without regard to origin – according to the Respondent’s argument.
Reacting to the above-mentioned petition for review, the legal representative of the Plaintiff requested that the Supreme Court uphold the previous judgements, because the courts came to the correct conclusions from the correct facts. In its counterclaim, it explained that the Respondent failed to fulfil its obligations under the burden of proof; consequently the courts had to establish the breach of the requirement of equal treatment. In case it cannot be excluded even after the exculpatory evidence procedure and even besides other causes that the protected characteristic may have served as the basis of the disadvantage suffered, the exculpatory evidence may not be deemed successful. The Supreme Court has not come to decision yet.
28 Case of Attila Sz.
One of the employees of a Hungarian transport services turned to our Office in April 2006 saying that his direct superior created an offensive and humiliating environment in his workplace. Attila Sz. of Roma origin filed a complaint with the boss of his superior who took no measures to improve the atmosphere but sent the complainant to test whether he was suitable to fulfill his position. On the form through which his test was requested it was written that “the smell evaporating from the employee displeased his colleagues as well as the passengers”. According to Attila Sz, besides being offensive and humiliating this part of the sentence was a reference to his Roma origin since his superior made several times such remarks concerning his Roma origin in front of his colleagues like “smelly gypsy (büdös cigány)”. The specialty of this case is that we managed to solve it through a friendly settlement. Our Office carried out successful negotiations with the employer, Attila Sz. is still employed by the company and his situation has improved.
Attila has been working as a bus driver for 24 years and has had no accident so far. In the last two years he was awarded premium to motivate his working at even better quality, he received the highest numbers as a result of the evaluation of his work and no disciplinary procedure was launched against him. He told that he had had a fairly good relationship with his colleagues and superiors when he had started his career. But after a time a new superior had been appointed and our client complained that under the new working conditions good performance had become impossible.
He had not been allowed to drive at the „better bus routes”, afterwards he had been transferred to staff for reserves. In April he had not been given opportunity to drive at all and he had felt that compared to his colleagues he had spent disproportionately much time in the garage. As to his knowledge, during that time there had been some regions where the transport company had been short of staff, which could be corroborated by the fact that the company had continuously advertised positions for bus drivers on its website. Having been assigned to the garage meant not only humiliation but also a decrease in his salary because the amount of income was dependent on time spent with driving and on the type of route the person served.
He told that beyond being deprived of the opportunity of driving a bus since April 2006, his superior had noted several times that he had not liked him and disliked working with him. The superior allegedly also made offensive, negative remarks referring to the complainant’s Roma origin. Attila Sz. also turned to the trade union’s representative saying that he had experienced discrimination, his superior had behaved in a humiliating way and had made remarks to his Roma origin. However, the attempt of the trade union for mediation failed.
The continuous stress in the workplace told upon our client’s nerves, he had to go on sick-leave many times during the spring. Without providing any reason for the decision, his superior sent him to an extraordinary testing of his suitability to performing his tasks.61 Our client had to take with him a letter to the examination containing false allegations, some of them also infringed his human rights and human dignity. According to letter Attila Sz. “goes to work irregularly, does not respect the orders given to him, his behaviour deviates from that of a general bus driver’s,; he continuously complains of stomachache and diarrhea, the smell evaporating from the employee displeased his colleagues as well as the passengers; his mood is changing rapidly and he also suffers from persecution mania.”. Although the envelope was sealed it was not sent by post but given to the complainant to take with him to test. It is obvious that the letter referred to Attila Sz in which case – in our opinion – its content should have been shared with him previously. However, as the letter was sealed we could not recommend him to open it. Finally he opened the envelope at his own responsibility and got to know the allegations offending and humiliating him. Later, commissioned by Attila Sz. our Office obtained the letter in an official way from the institute carrying out the suitability test.
Despite the letter characterizing our client extremely unfavorably Attila Sz passed the test successfully. The psychological examinations did not prove the assumption concerning his “persecution mania” or “rapidly changing mood”. With regard to the other allegations in the letter we mentioned that if the employee had underperformed or had violated his obligations reprehensibly, perhaps a passenger had submitted a complaint against him than the employer would have had several possibilities to impose sanctions upon him. However, all
61 As per Article 2 (3) of Decree 41/2004. (IV. 7.) of the Minister of Transport and Economy on the suitability test of drivers the employer may order the driver’s suitability test in case the drivers activity provides a reason to do so from the aspect of the safety of traffic.
29 these should have been done in a written form. We believe that “the smell evaporating from him” directly referred to our client’s Roma origin. It is also incomprehensible that in case the employee appears unkempt, ignores the orders given to him than why is he sent to suitability test instead of applying the sanctions that are at the disposal of the employer (warning, disciplinary procedure, etc.).
Despite the fact that Attila had passed the extraordinary test he still was not allowed to drive. In June 2006 our client proposed the traffic director to start negotiations in his case, however the discourse did not solve the problem either. His superiors thought that a possible solution for him would be to ask for his transfer to another region. However, our client thought that he had not committed any disciplinary offence, he had always performed well, therefore he had no reason to leave his job or ask for a transfer. His aim was simply to redress the humiliating atmosphere at his workplace and to be able to drive buses just like any other of his colleagues.
With regard to discrimination, the Act on Labour provides that the requirement of equal treatment shall prevail in the labour-related legal relationships.62 The ETA provides that direct discrimination shall be constituted by any action as a result of which a person or a group of persons based on real or assumed racial affiliation, color of skin, nationality, ethnic affiliation is treated less favorably than another person or group of persons in a comparable situation.63 As per our opinion, the requirement of equal treatment was violated in this case as Attila Sz., who is of Roma origin, was regularly assigned to serve in the garage as opposed to his colleagues, which position yielded lower income and had worse prestige At the same time the ETA contains provisions for the situation when a person is forced to bear conditions or environment violating his/her human dignity. The ETA defines the conduct violating human dignity that is related to the relevant person’s characteristic defined in ETA, with the purpose or effect of creating an intimidating, hostile, humiliating or offensive environment as harassment.64
Since our client’s primary aim was to achieve normal working conditions and not to be discriminated against, we did not think that litigation would be practical in the case because that could have embittered the situation.
On 25 July 2006 we turned to the head of the company through a letter and asked for an opportunity for negotiations in the case. In the letter we noted that we believed that under the conditions experienced the employee’s right to equal treatment had been violated and the environment created by the direct superior of the complainant had constituted harassment. We also mentioned that some of the allegations of the letter prepared for the suitability test had also violated our client’s right to human dignity and the „smell evaporating” had directly referred to his Roma origin.
We did not receive an immediate answer. However, one of the superiors of the complainant told Attila that he „violated his obligation of service confidentiality” by opening the letter “which would have serious criminal consequences”.65 Although we did not agree with the content of the threat we required an official statement from the Parliamentary Commissioner for Data Protection as to the confidentiality of data contained by the letter, just to ease our client. In accordance with our standpoint the Commissioner elaborated in his answer that under the Act on Data Protection the interested person can require information about his personal data processed by other persons. Upon the request of the interested person the person processing the data shall provide information on the data processed, the aim, the legal basis, the period of data processing, further on the name, address of the person processing the data and its activity related to data processing, finally information shall be given on who received the data and for what aim.66 The person processing the data is obliged to give an answer as soon as possible but no later than 30 days after the submission of the request in an easily understandable language. In the instant case the employee was entitled to know the reason for having been sent to extraordinary suitability test. The employee’s personal data may not be qualified as service secret. At the same time the Commissioner noted that the employee had been not entitled to violate other’s personal rights, like breaching the right to privacy of correspondence, in order to enforce his rights to protection of personal data. In case an employee requests information on his personal data and the employer refuses to appropriately provide him with them, the rights must be enforced through the procedures provided by law.
62 Article 5 (1) of the Act XXII of 1992 on Labour 63 Points b), c) and e) of Article 8 of ETA 64 Article 10 (1) of ETA 65 Under Article 4 (1) of Act LXV of 1995 on state and service secrets shall be data belonging to the category of those data that are qualified as service secret by those authoirzed by the Act to do so (e.g. president of republic, president of the Parliament, president of the Constitutional Court, etc.). 66 Article 11 (1) of Act LXIII of 1992 on the protection of personal data and the publicity of data of public interest
30 In the first week of September 2006 we received an answer from the transport company. It contained that in their opinion no discrimination had occurred but they were open for personal negotiations. In relation to the extraordinary test they expounded that the employee himself had acknowledged that he had been very worn out by the stress caused by his work, he had gone on sick-leave because of problems with his stomach, and all of these taken together had provided substantial grounds for sending the employee to the extraordinary examination. In terms of the allegations of the letter – which they called „prescription” - objected by us, the answer referred to the scope of duties of the employee requiring the employee to appear clean and neat in work.
The letter did not answer our questions and concerns in our opinion, and what is more, our client’s situation in his work deteriorated and therefore his health condition worsened and had to go on further sick-leave. The reason for this was not the stress caused by his work but the stress generated by the environment created around him.
Following long phone talks, the personal meeting with the representatives of the company took place on 2 October 2006. The company was represented by eight senior managers and an attorney. During the negotiations, which started in a tense atmosphere, we outlined our client’s complaint as to which he had heard regularly from his colleagues that his superior had made humiliating remarks related to his Roma origin violating his human dignity. We also mentioned that the employee considered some of the allegations of the letter sending him to the extraordinary suitability test to be offensive and humiliating especially in connection with the remark „the smell evaporating from his body”. We also objected to the fact that our client had been continuously assigned to garage service in the previous months, he had not been allowed to drive meaning he had been employed in a less favorable position compared to his colleagues in the same situation. Finally we noted that this situation had existed ever since his new direct superior had been appointed.
We emphasized several times in course of the negotiations that we had no concerns about ordering the extraordinary test, we considered it to be lawful although we could not see its grounds clearly. At the same time we challenged the allegations of the „prescription” simply on the basis that the employer had imposed no sanctions upon the employee, there were no traces of any serious objection as to the performance of our client.
The company’s representative told us that they had carried out an internal investigation into the case which reveled no ethnic discrimination. At the same time documents showed that the employee had been on sick-leave extremely many times since December 2004. Therefore the employer could not count on his work regularly meaning that he had faced many difficulties with scheduling our client’s work time or planning his actual job. The representative also noted that there were other persons of Roma origin employed by the company who never submitted a complaint on account of ethnic discrimination. He also mentioned that in case of a legal procedure the complainant should have to prove the occurrence of disadvantage. At the same he noted that his superior wanted to solve the case via friendly settlement which was proven by the fact that they were open for the negotiations.
With regard to sick-leaves Attila Sz. asked the company to check that while working under the previous superior he almost never went on sick-leave. He had been sick ever since the direct superior had arrived who had created an atmosphere in the workplace which had told upon his nerves and emotions. He also mentioned that he had complained many times to his superiors of the bad working conditions before.
We suggested a detailed analysis of the allegations of the offensive letter which was accepted by the representatives of the employer. In terms of „going to work irregularly with no respect for the rules” the direct superior, who was also present at the negotiations, said that the driver once happened to be late for work and on the same day he went home sooner than the end of his shift. He told that an oral warning had been the consequence of that behavior. Attila Sz. did not remember such event and disputed that it had ever happened. Regarding the allegation „does not respect the orders given to him” the employer said that whenever the employee had been to garage service he „had escaped to going on sick-leave”. Upon our question whether they disputed the diagnosis written on an official medical document or they challenged the justification of sending the employee on a sick-leave from a medical point of view, they answered: No.
The employee said that under „his behaviour deviates from that of a general bus driver’s” one must understand that there had been many complaints concerning the employee received from passengers. The company’s legal representative shared a complaint with us as to witch a lady had complained of „having been continuously stared at from the mirror by the bus driver and when she protested against the driver’s behavior the driver ordered her to get off the bus”. We asked whether there had been any consequences of the case and the representatives told
31 that nothing happened after that. Our client mentioned that the passenger’s complaint had been ill-founded and obviously that had been the reason for not applying disciplinary measures against him.
Regarding „the smell evaporating from the employee displeased his colleagues as well as the passengers” Attila Sz. told that this statement is extremely offensive and humiliating and he also challenged its truth. At the same time he thought that there was a connection between the things written and the fact that according to the telling of his colleagues his direct superior had called him „smelly gypsy” behind his back many times. The employer replied that the employee went to work „unkempt and in an improper hygienic state” that his colleagues also complained of but did not dare to tell him face to face because it would have been a very uncomfortable situation.67 One of the other representatives present at the negotiations told that this sentence also refers to the fact that stomach problems could cause unpleasant smell, therefore a medical examination would be necessary. We asked whether the employer warned or perhaps sanctioned the driver for going to work in improper clothing or being unkempt. They answered that this problem was orally mentioned during autumn after the extraordinary test took place.
In connection with the „prescription” the company’s attorney expounded that no one had anything to do with its content except for the employer, the doctor and the employee, and it was our Office’s responsibility that these secret information was publicized. Furthermore, the attorney told that employers are responsible for assuring that their drivers do their job in proper mental and physical state, therefore it is reasonable to inform the doctor examining the employees on every single „suspicious” circumstance or symptom. This had happened it the instant case, the content of the prescription had no bearing upon the ethnic origin of their employee. Regarding the question that why did the employer not apply any written sanction in spite of the negative statements concerning Attila Sz’s work the attorney answered that this fact only supports their view that the employer suffered no disadvantage.
The head of the company noted that the driver had turned also to him with his complaint before when he had recommended that in order to avoid personal conflicts the driver could be transferred to another region, and this option had been accepted by the employee. However, the employee had backed out of the agreement without reasoning. Attila Sz. replied that he had asked our Office for legal advice whether he had been obliged to accept the transfer and he had decided not to accept the offer because he had not wanted to take to his heels. He had felt that he had always performed well, drove 24 years without any traffic accident therefore he had not wanted to „escape” as if he had committed something wrong. He emphasized that the only thing he wanted to achieve was to be let working without disturbance, to be allowed to drive just like his colleagues and not to be forced to bear humiliating remarks related to his Roma origin.
Before the end of the negotiations we suggested that the company analyze whether our client’s working conditions would be the same as those of his colleagues in a comparable situation during the forthcoming month..
After the negotiations the company’s legal representative informed our Office that in a closed meeting of the senior managers the company decided that the a new direct superior would be appointed for Attila Sz. whose activity would be under close supervision by the employee. The employee’s problem – the root of which was not ethnical but personal conflict, said the representative – was redressed by this measure according to the company.
In December 2006 we contacted Attila Sz to get know how his situation was in his workplace and whether the negotiations yielded any results. We received a reassuring answer: there was no problem with his new direct superior, he was withdrawn from the garage service and was allowed to drive in the „better routes” as well. His relationship with his colleagues and superiors was good. We deem the negotiations to be successful: although the employer did not acknowledge the occurrence of discrimination, the company took the necessary measures in order to redress our client.
67 Our colleagues have had a close relationship with Attila Sz. for several month, they also met him personally many times. We never experienced that he would be unkempt or improperly dressed. We also met him when he was going to work or going home from work and his appereance was always unobjectionable.
32 HOUSING
33 Mrs. Sándorné B.
We have already included the case of Sándorné B. in last year’s White Paper, but because of the latest developments of the case we felt it necessary to deal with it again.68 As we reported last year, one district council of Budapest granted the homeless woman of Roma origin temporary accommodation out of equity. Sándorné B. and her family of ten moved to the comfortless premises of thirty square meters, opening to the courtyard. The neighbours were not happy with the appearance of the big Roma family, so they collected signatures for their petition, which they later submitted to the district council trying to get rid of the unwanted dwellers. In October 2005, the district council notified Sándorné B. in writing that it terminates the tenancy contract in consideration of the neighbours’ complaints and obliged the family to leave the flat within eight days.
The district council concerned signed a tenancy contract with Sándorné B. on 28th January 2005 for a fixed period expiring on 31st December 2006. The tenant and her nine relatives – including five minors - moved to the flat under the terms of the equity-based contract. Although pursuant to the relevant decree of the government on the lease of flats owned by local governments, in case of more than eight residents, the extent of the demand for flat covers at least four and a half living-rooms, this does not apply to assignment on the basis of equity. According to the decree, a single-room, comfortless flat may be leased to a homeless without tender, if he lived in this district on a regular basis before he became homeless and had a permanent address.
Pursuant to the minutes of the property management office of the local government, family B. of ten undertook a thirty square meter premises with a room and a kitchen, situated on the ground floor, opening to the courtyard on 7th February 2005. There is no toilet and bathroom in the flat, according to the minutes, the floor, the plaster, the windows, the painting and the glasswork are faulty. Despite the bad circumstances the family – regarding the fact that they had spent the previous half a year on the street – was very happy with the opportunity. However, not too long after they had moved to the flat, a tension developed between the new dwellers and the neighbours. In Sándorné B.’s opinion, many of the neighbours gave voice to their dislike of her and her relatives when seeing that a numerous Roma family moved to the house. Conflicts were usual, because their kids played in the courtyard and moreover the neighbour’s opinion was that the circulation concerning the common toilet on the courtyard proved to be too high. According to Sándorné B.’s telling, once a resident asked her to take the kids away from house when potential buyers come to see the flat he wished to sell. Many residents had the – not hidden - opinion that because of the fact that a numerous Roma family lived in the courtyard, the market value of their flat significantly decreased.
After a neighbour had assaulted one of the kids playing in the courtyard, Sándorné B. turned to the district council. In her letter she expressed that in her point of view neither she nor her relatives gave cause for the antipathy of the neighbours, they used the flat in conformity with its intended purpose, but on the other hand they were the targets of continuous atrocities, they were always humiliated because of their Roma origin (“cigányozás”) and they were also targeted because of problems caused by others. Soon afterwards the neighbours turned to the district council too. They submitted a complaint against the two Roma families living in the courtyard signed by twenty-three residents to the mayor of the district. Pursuant to this “living together” with these families “is impossible”. “Threats to kill, late night parties, police actions are not exceptional (…), they ruin, destroy their surroundings.” The residents requested the district council to “find another way of accommodating” the tenants.69 It is not revealed in the petition exactly which action, behaviour of exactly which member of the two families triggered off the anger of the residents, keeping in mind that apart from the Baloghs, there is also another Roma family living in the courtyard.
Sándorné B. received no reply to her letter, but after the neighbours submitted their petition, the housing management office carried out a control of tenancy. Although, according to the minutes of the control no such problems were revealed that would have confirmed what the neighbours wrote in their letter, Sándorné B. and her family were asked in an official letter on 20th October 2005 to leave the property within eight days.
After our office joined the case, many meetings with the officials of the housing management office took place. Meanwhile many of the residents of the house wrote another letter to the district council testifying that the family “does not disturb the quietness of the house, their presence mean no problem at all”. During the meetings with the district council officials our opinion was that the process that had taken place in connection
68 White Paper 2005. Case of Sándorné B. p. 60-63. 69 Excerpt from the residents’ petition.
34 with this case had many weak points that we worried about. While appreciating that the district council ensured accommodation for the homeless family in January, we doubted that the decision due to which a family of ten got moved to a 30 square meter flat was considered well enough. Under such circumstances it can easily be foreseen that even the quietest person would be unable to share thirty square meters with nine other persons whilst maintaining a smooth relationship with the neighbours.
We also found it strange that at the beginning of the year the district council had appreciated that the family lived under very harsh circumstances, bringing up the five minors on the street, being unable to financially take care of their accommodation themselves, but half a year later it requested them to leave the flat within eight days and go wherever they wanted.
Beyond the circumstance that the actual reason for terminating the tenancy contract cannot be discovered even when scrutinizing the file of the case, we also found it alarming that there was no trace of any kind of measure of the district council aiming at preventing the children from possible endangering conditions; since it is obvious that if the family fulfils the request of the district council, they will be back on the street with the children again. Nonetheless, the Act on the Protection of Children states that upon the claim of the parent who has become homeless, the child and the parent may together be placed in the temporary home for families if without this their accommodation would not be ensured and therefore the child should be separated from the parent. Consequently, if the district council makes a decision that the family bringing up minors is obliged to leave the flat within eight days, it shall also make measures that the children together with their parents be placed in an appropriate temporary home. However, the district council should have contacted the competent children protection service beforehand, because if the officials found the reports of the neighbours credible, they should have also taken into account the possible endangered situation of the minors.
At last we also scrutinized whether the district council complied with the requirement of equal treatment. On one hand we were aware that the district council based its decision on equity when assigned the flat to the homeless Roma family and ensured them accommodation without tender. However, after they had moved in, the attitude of the same district council towards the request of Sándorné B, who has Roma origin, was different than its attitude towards the petitions of the non-Roma residents. Whilst not replying the woman’s letter she sent to the notary in July, in the end they terminated her tenancy contract due to the complaints of the residents.
After the reconciliation meetings took place, it seemed for a while that the problem would be solved. Though the tenancy contract expired on 31st December 2005, the district council made no step towards the vacating of the flat. We enquired several times and got the answer that the case of the tenant – with view to the new, this time positive letter of the neighbour – was being re-examined.
On 15th September 2006, more than half a year after the tenancy contract had expired, the head of the housing management office sent a letter to Sándorné B. In this letter he informed the woman that the district council consented to the signing of the tenancy contract concerning the same flat for a definite period of time, until 8th February 2007, under the rules applying to tenancy based on equity, in case Sándorné B. undertook that after the date of expiry, they would vacate the flat and she included this statement in a document prepared by a public notary.
The woman got frightened because of the content of the afore-mentioned letter and immediately asked for our help. We inquired and got the answer from the officials that because of the complaints that the neighbours had submitted more than a year ago, this is the only way of signing a new contract with the tenant. No answer was given to the questions why the content of the request of our client submitted also more than one year ago was not examined at all, plus why her letter was not important enough to answer it and finally why did they ignore the fact that no complaint was received about the family ever since, moreover, several residents signed the letter stating that this was not the family causing problems in the house.
Our office tried to convince the district council not to request that our client sign the document of a notary public. We did not succeed in spite of the fact that it was probably also obvious to the officials too: the woman and the children face the threat of homelessness, as they would not be able to solve the problem of accommodation by themselves. In the end, Sándorné B. – since she was noticed that she would be put back on the street very soon, because her contract had already expired on 31st December – made a statement before a notary public that “by the termination of her tenancy contract, on 28th February 2007 the latest, she and the persons moved in with her leave the leased temporary accommodation without delay and without any claim of accommodation, she will take care of her further accommodation, vacates the flat and provide the possession of the flat for the lessor.”
35 After the public notary prepared the document about the statement, the district council signed the tenancy contract for a definite period of time, article 7 of which states that the vacating of the flat was included in a document prepared by a notary public. We managed to achieve that an employee of the housing management office declared in a non-official note: if the family fulfils its obligations pursuant to the contract and the residents of the house do not submit any complaint against them either, they may submit a new application in January 2007, requesting that the contract turn into a contract for indefinite period.
In our opinion, as we have already referred to, the district council proceeding again raises problems of different nature. According to the so-called Local Government Act, social services and children and youth services belong to the responsibility of the local governments.70 Pursuant to the Child Protection Act (CPA) we have already referred to, upon the claim of the parent who has become homeless, the child and the parent may together be placed in the temporary home for families if without this their accommodation would not be ensured and therefore the child should be separated from the parent. Maintaining and operating the temporary home for families is the duty of the local government (here: district council), thus it should provide – at least temporary – accommodation for the family, in case they became homeless. Besides the CPA, the Social Act (SA) also assigns obligations to the local governments, for example in connection with preventing and terminating the crisis of families.71 The local government is also obliged to ensure accommodation for those in need of it if the lack of it would endanger their life or physical integrity.72 Contrary to this, the district council forced Sándorné B. to waive her right to any further accommodation in a document of a notary public. The question remains whether it also means that she waived her right to be accommodated in a temporary home for families together with her children, or submit such an application. The standpoint and the proceeding of the district council is especially inexplicable and cynical taking into account that it is obvious for everyone: even in February 2007 the woman will not financially be able her to take care for the accommodation of her family of nine including minors by herself.
In our point of view the proceeding of the district council is not even in compliance with its own decree on accommodation. Pursuant to an article of the decree, in case of a fix-period tenancy contract, the conditions of the tenant - including social and financial - and also the reasons for the renewal of the contract must be examined before expiry. The question is why the tenant shall take the obligation to vacate the flat if – according to the decree - the district council shall examine the reasons for further leasing. It is incomprehensible on which basis the future tenant is required to include its statement in a notarial document if no such obligation is included in the rules on the leasing of flat based on equity of the relevant decree. We just mention that the costs of the notarial process must also be paid by the tenant which means a serious financial burden for the socially handicapped family.
In November 2006, we applied to the ombudsman for minorities to scrutinize the leasing practice of the district council. The process of the ombudsman is ongoing. As the representatives of Sándorné B. we will of course submit an application for modifying the contract to indefinite period before the fixed period of the contract expires.
70 Article 8 of Act 65 of 1990 (LGA) 71 Article 64 of Act 3 of 1993 on Social Services and Social Administration (SA) 72 Article 8 of SA
36 EDUCATION AND TRAINING
37 Segregation in pre-school
According to a complaint sent to our Office three pre-schools maintained by one of the district local governments in Budapest were merged in 2006 in such way that the segregation that existed prior to the merger was not terminated. The Roma and non-Roma children are still educated separately in the new pre-school.
The notice received from a teacher who used to work in the institution said that the proportion of Roma children was extremely high (80-90 per cent) in two out of the three institutions concerned) as opposed to the third one where one can hardly find Roma children (around 10 per cent). Within the framework of the merger one of the „Roma pre-schools” was closed down and the other two institutions –that in reality were located in the same yard but in separate buildings - were merged. So the new institution now consists of the member pre-schools. The local government failed to terminate the existing segregation: the children are still educated separately since the vast majority of Roma children (around 95%) were moved to the building where almost exclusively Roma children were educated prior to the merger.
According to the reports received from parents, the building that accommodates the four Roma kindergarten groups is almost 100 years old where there are only one toilet, one washbasin and two changing-rooms. The premises for the groups are small and properly separated from each other, they are also dangerous (because of the uncovered radiators and the folding door). There were no adequate development instruments and tools (plasticine, color pencil, story-books, drawing paper), these had to be obtained by the parents themselves, while the other instruments were out of date. Because of these circumstances the education and development of the children encountered difficulties and many of these children started the primary school from a less advantageous situation compared to their peers. The material conditions did not meet especially the requirements set forth by the „Step by Step” Program.73. The integrated educational program was first introduced in the „Roma pre- school” that was closed down and was used after the merger in the four groups mentioned. Later the management of the institution announced that integrated education would be restricted to two groups, and afterwards the application of the very useful and successful educational method was discontinued.
Contrarily, the premises for the children mainly of non-Roma origin were far better equipped. The building was constructed in 1982 and was in a much better state. There were six groups in this building; all of them had their own toilet, washbasin and changing-room. The office for the secretary, the head teacher, the speech therapist and the development teacher were also located in the building.
The children attending the different member-institutions could not go to the other pre-school: the Roma children were not placed in the building that was attended mainly by their non-Roma peers, and in case a child was admitted after the school year had started the new child was placed in the „proper” building on the basis of his/her ethnic origin. As to the parents telling the pre-school’s management effectively prohibited the children to „trespass”: the yard was divided by an imaginary line that the children were not allowed to step over. The segregation meant a very humiliating situation both for the children and their parents as they had to face unequal treatment and segregation day by day.
In the school year of 2005/2006 the pre-school also employed a social pedagogue. As to the scope of her activities provided by her labour contract she had to assist the teachers implementing the „Step by step” Program in the four groups and the parents of the children concerned. Pursuant to the decision of 12 June 2006 of the local government maintaining the pre-school seven employees had to dismiss from the institution as a result of the merger. Six of those sent away worked in the „Roma pre-school” including the social pedagogue. This way there was no social pedagogue in the institution after the axe. Although the position was not cancelled it was not filled in even in the following school year. The social pedagogue thinks that when deciding upon whom to
73 The Step by Step (SbS) preschool program was elaborated in the ’90s by American experts under a project coordinated by the Open Society Institute. The aim of the program is to engender democratic principles and practices in young children and their families. The Step by Step methodology encourages children to make choices, take responsibility for their decisions, express their ideas with creativity, help one another, develop critical thinking skills, and practice independent thinking. The founders of the program drew a lot from the reform pedagogic intellectual thinking that focuses on the unique characters of an individual, on the complexity of the world and the our knowledge about it, and emphasized the importance of the open-minded, natural education.
38 dismiss, the management took into consideration the fact that she raised her voice several times because of the circumstances hindering the education of the Roma children.
As far as we know the situation described the parents and the teacher dismissed still exists. In light of the facts shared by the complainants we believe that the practice of the maintainer local government violates the requirement of equal treatment and constitutes segregation. The maintainer might be liable for the existence of unlawful situation because it failed to bring decisions suitable end discrimination. This is corroborated by the fact that the local government failed to terminate segregation in course of the merger process.
The prohibition of segregation is provided by the law in Hungary: the ETA specifies segregation as unlawful separation. The Act prohibits the segregation of people for being a member of the protected group unless an Act of Parliament authorizes such action.74
According to the everyday experience and the conclusions of sociological researches, the segregation of Romas in education is still a very serious problem in Hungary. Discrimination in public education frequently occurs already in pre-schools, Roma children from the age of three four are separated from their non-Roma peers. This fact is likely to have been obvious for the legislator as well since in the chapter on education the ETA provides that unlawful separation of pupils in public educational institutions constitutes a violation of the requirement of equal treatment.75 The Hungarian legal system, in compliance with the international regulations,76 pays special attention to segregation with an increased focus on its occurrence in education. In practice, segregation means not only that children are separated form each other but also that the separate groups, classes or schools offer education and service of much lower quality than those available in non-Roma institutions. Separation and lower quality education significantly set back children’s development and has detrimental consequences on their studies and chances to find a proper job.
Upon the notice our Office asked for the help of the Parliamentary Commissioner for National and Ethnic Minorities to carry out a comprehensive fact-finding in the pre-school because in such cases the Commissioner has a lot more powers to examine the conditions in the educational institutions. The decision on the further steps will be made together with the parents as soon as we get to know the results of the Commissioner’s investigation.
74 As per Article 10 (2) of ETA segregation is a conduct that in lieu of an express authorization of an Act of Parliament separates persons or group of persons from others on the basis of characteristics defined by the ETA without any ground that seems reasonable according to objective consideration. 75 ETA 27 (3) . 76 E.g. see: UN Convention against discrimination in education, and the ECRI’s 3. Recommendation on the fight against racism and intolerance towards Romas.
39 Case of Mrs Árpádné F.
Mrs. Árpádné F., who lives in the village of T. in Borsod county, in January 2006 submitted an application for regular social aid to the local government, and during the evaluation of the application she was called to submit the certified copy of her primary school report book, for without this her application shall be rejected. In the primary school she was informed that it would cost HUF 6,500.- to reissue her lost school report book. As it was revealed later, the school charged an amount being significantly higher than the factual administration cost based on a legal regulation which was overruled years ago.
The lady is unemployed for an enduring period, she cares for four minors along with her also unemployed husband, the family lives in deep poverty. Mrs. Árpádné F. has a primary school education, but her school report book got lost years ago. In January this year she submitted an application for regular social aid77 to the local government, and she was noticed during the procedure to submit her school report book, otherwise her application could not be registered.78 In the primary school she was informed that it would cost HUF 6,500.- to re-issue her lost school report book. As the payment of this amount would have meant a disproportional burden for the family, the school issued an official certificate instead of the school report book, that the applicant was studying on a primary level in that school, and that she finished eight grade. The application for the regular social aid, however, was rejected, on account of the information provided by the notary of the government, based on the relevant legal regulation the certification on the level of education or special skills or its certified copy should be attached to the application, and this cannot be supplemented by the certification issued by the school. 79
According to the regulations on administrative procedures, the procedure may be terminated if the client/applicant does not comply with the notification on supplying missing items, and does not request the extension of the deadline set forth for this obligation. 80 The acting notary therefore did not have any other option apart from terminating the procedure – due to the lack of submitting the requested document. Still it made us think whether it was unfair to terminate the aid application of a client being in financial emergency, without the authority making any efforts to provide help in acquiring such document.
There is a possibility under the Social Act81 for the board of representatives of the local government to provide temporary aid for persons in extraordinary circumstances threatening subsistence or for persons dealing with temporary or enduring sustenance problems. In our opinion in case of Mrs. Árpádné F. it would have been well- grounded to provide temporary aid in order for her to be able to pay the stamp duty necessary for acquiring the certified copy of the lost school book. Obviously the board of representatives could only decide to provide such aid if the client submitted such an application, however, the client should have been informed about the options available to solve her problem.
The experience of our office in these and similar cases is that it is very difficult to detect overt, direct discrimination towards Roma and other clients having a disadvantaged situation from those acting in the administrative procedures. Still, as the ombudsman for minority rights referred to it several times, a covert form of discrimination is committed when a Roma client is treated by the authority with less concern and respect, eventually she/he has to wait more, her/his comments, applications are treated less seriously, or the case administration – which is bureaucratic to start with – becomes even more complicated and difficult. The soulless
77 Based on Article 37/A Section (1) of the Act No. III. of 1993 on social administration and social welfare supplies the regular social aid is a support provided to persons having a disadvantageous employment market situation and their families. Regular social aid may be granted with unemployed people under a certain asset threshold, still the grantees should cooperate with the local government and other designated agencies (e.g. employment centre) during the payment period of the aid. 78 The information on the level of education is important when granting and disbursing is important for according to the Social Act the unemployed persons, in the scope of cooperating with the local government, has an obligation to accept the offered employment opportunity suitable for her/his level of education or being one grade lower. (Social Act Article 37/H.) 79 Government Decree no. 63/2006 (III. 27. ) on the detailed rules on requesting, granting and disbursing financial and in kind social welfare supplies. 80 Article 31 Section (2) of the Act CXL. of 2004 on the general rules of administrative authority procedure and services (Ket.) 81 Article 45 Section (1) of the Social Act.
40 and bureaucratic case administration, behaviour of the administrative authority is called „maladministration”82 by the legal profession and the ombudsman for minority rights deals with it in his report for the year 1995-96. As the minority ombudsman writes, the discrimination takes place due to the low prestige of the applicant, her/his defencelessness based on her/his minority status. It is a kind of discriminatory situations occurring in administration when as a result of the government’s incomplete compliance with the obligation to provide information for the client and to cooperate with her/him, the average citizen receives the information necessary to enforce her/his rights, but citizens belonging to a minority group having a disadvantaged situation cannot have access to them. Naturally we do not state that if Mrs. Árpádné F. had gone to the office as a „Caucasian middle- class person” rather than as a member of the Roma minority, she would have received all information necessary to manage her case. At the same time, Roma clients turn to our Office every day to receive simple information which should have been provided by the administrators of different authorities.
Beyond failure to provide the adequate information and the lack of minimal empathy that could be expected in our opinion, the procedure is meticulous. The amount of the stamp duty paid by Mrs. Árpádné F. in the end was set inappropriately. In April 2006 we inquired the secretary of the affected school by phone to receive information about the method by which the amount of HUF 6,500.- was calculated. The secretary referred to a decree according to which in case of replacing lost or destroyed school report book an administrative fee is payable, the amount of which equals ten percent of the compulsory minimum wage applicable at the first business day of the year of issuing such a replacement. 83
According to our Office, the school’s reference to the legal regulation was inappropriate. For the decree based on which the fee was calculated was overruled by an other decree in 2003! 84 As per the Act on Stamp Duties – which is to be applied in this case – a stamp duty of HUF 2,000.- is to be paid for the secondary copies of school report books85.
In order to clear this issue – and to be able to represent interests more effectively in the future – we turned to the Legal and Codification Department of the Ministry of Education to provide an interpretation about which legal regulation should be regarded as prevailing when issuing a secondary copy of school report books. The Ministry had an opinion corresponding with our viewpoint that from 3 March 2003 the HUF 2,000 stamp duty referred to in Title VIII of the Stamp Duty Act is to be paid by the applicant when issuing secondary copies of a school report book.
We turned to the director of the primary school by attaching the statement of the Ministry, and requested them to refund the difference between the HUF 6,250 that was required based on an ineffective legal regulation and the legally correct amount of HUF 2,000 within 8 days. We simultaneously turned to the notary of the village, who is the person to supervise the legal operation of the school supported by the government, to investigate how many people could have been damaged by the improper money collection of the school, and to take immediate actions to re-establish the legal conditions.
We have not received replies neither from the school’s management, nor from the notary, despite us calling the notary two times by phone to explain to him that the raised issue requires a little attention and some action to be taken. Mrs. Árpádné F. received the difference from the school by post.
82 The „indirect” maladministration, In: Fundamentum, 1997/1., Excerpt from the report for 1995-96 of Mr Jenő Kaltenbach, Ombudsman of National and Ethnical Minority Rights. 83 Article 7/A Section (1) subsection a) of the 11/1994. Decree of the Minister of Education, which was amended by Article 8. of the 8/2000. (V. 24.) Decree of the Minister of Education. 84 Article 7/A Section (1) subsection a) of the 11/1994. Decree of the Minister of Education was abolished by Article 3. of the 6/2003. Decree of the Minister of Education. 85 Section VIII. of the appendix of the Act on Duties no. XCIII of 1990.
41 GOODS AND SERVICES
42 Case of Nikoletta R.
In November 2005 Nikoletta R. and her cousin wished to have a soft drink at the popular club in their street but the manager denied them service at the bar and requested they leave. The manager later explained that he did not want to serve the girls because he had had bad experience with Roma guests before. Tests conducted concerning the case confirmed the suspicion of ethnic discrimination, the treatment witnessed by our Roma testers was similarly degrading as the one witnessed by the claimants. The case is interesting because the owner and manager of the club recognized the violation out of court, apologised to the claimants and paid a sum of 100 000 Forint each as compensation.
Around 8 o'clock in the evening on 8 October, 2005, Nikoletta R., accompanied by her cousin wished to have a soft drink at the popular club in their street. Her father warned them that it was well known in the neighborhood that Roma were not welcome guests in that club, they’d better not even try to get service, since they will only get disappointed. Nikoletta, who was just before high-school graduation, did not believe that her father's worries would be true. Though they could enter the club, they could not order drinks as the manager stepped forward behind the bar and asked them to leave in an upraised voice. He explained that the club was hosting a private event. Our clients found this quite peculiar, as several of their non-Roma classmates were in the club. After the manager's request several of the guests started watching them, which became very unpleasant and humiliating, so the two girls headed for the exit.
They met one of their non-Roma neighbors in front of the club, who told them that he had not heard about any private event to be held that day. Having had heard the girls’ complaints the neighbor went to the manager and questioned him about the case. The manager escorted all of them outside to avoid disturbing the other guests and explained that he had bad experiences previously with three "gypsy girls" so he thought it better to send them out as well. He added that he did not know that the two girls lived in the street in which case he might have served them. This discussion was watched by many of the guests from the club, amongst them several non-Roma acquaintances and classmates of our clients.
The Roma youths were very shocked by what happened to them. The manager's behaviour, the refusal of service violated their human dignity. It was particularly humiliating that the incident happened before their non-Roma friends and classmates. They arrived home crying and told about the events to their parents. The next day Nikoletta R.'s father went to talk with the manager, who again accounted for his decision by the fact that he had had "bad experience with Roma."
We agreed with the claimants upon our first meeting that we would talk with the owners of the club in order to resolve the case out of court before seeking legal remedies. Though several people witnessed the incident, most witnesses were minors and their families did not want to go to court.
In order to contact the official operators of the club, we contacted the notary of the local government to supply us with the needed data, which step resulted in a separate and lengthy strand in the proceedings, stopping the handling of the original complaint for a long time.
After contacting the notary we received, first over the phone and then in writing, the answer that the data requested by us were of a personal nature and they want not authorized to make them public. During our talks we explained that it was quite a strange point of view since if we were to consume anything in the club and ask for a receipt, the receipt would contain the entrepreneur's name, address and tax number. In light of this it is unusual to qualify the name and address of the operator of a public club as personal data. According to the act on private entrepreneurs the register of entrepreneurs holding a private entrepreneur card is public (except for phone and fax numbers.)86 If the club was not operated by a private entrepreneur but a company, the situation would be the same, the data we requested (name, place of business) are public. In a reaction to our new letter, the record office dealing with our request requested us to attach to our letter the letter of consent of the entrepreneur. When we suggested that if we knew the name and address of the entrepreneur, we would not be in need of the official data request, the record office did not react.
Since our Office insisted that the requested data were public and we had a right to get to know them, and the competent notary insisted that the requested data were of a personal nature and could not be made public, the
86 Article 4/A, section (5) of Act IV of 1990.
43 case got stuck at this point. On 6 March 2006, we turned to the Data Protection Commissioner initiating an investigation into the case and asking him to share his standpoint in the issues raised by our data request.
The investigation concluded that due to legal regulations the name and address of the operator of a business are not available for the public even though there are no rights or interests that make such a restriction justified. As the Data Protection Commissioner pointed it out, this restriction is not in harmony with the constitutional right of freedom of information.
According to the Data Protection Act (Avtv.) all data that can be linked to a natural person and all conclusions made from these data and all conclusions concerning the individual shall be considered personal data.87 Data concerning the private entrepreneur can be seen as personal data in this sense. Personal data can be handled if the individual in question gives their consent or law requests it.88 Handling of data is defined as any action executed with the data, such as utilization, forwarding, or making public.89 Personal data can be ordered to be made public by law.90 In case an act qualifies any personal data public, making it accessible to all, the personal data becomes public data out of public interest. Public data out of public interest are data that are not public data but are made public out of public interest by law.91
As the Data Protection Commissioner pointed out, since the register of private entrepreneurs is public, the name and address of the entrepreneur are accessible to all; these data are in this sense public data out of public interest. The data are handled by the Central Office/Regional notary running the register of private entrepreneurs or the Registry Services/Registry Courts running the register of companies. However, the register of private entrepreneurs and the register of companies shall include the name and address of a store/club operated by the entrepreneur/company only in case the store/club is registered as place of business or other business premises. Based on these findings, the Data Protection Commissioner established that the registers did not contain the name of the store in question and concluded that the rules governing the register of private entrepreneurs do not make any supply of data lawful. In lack of these provisions the name and contact data of the operator based on the name/address of a store cannot be obtained by the public. The data needed to launch the procedure for the enforcement of rights in this way proved to be impossible. At the same time the investigation established that the notary falsely referred to the act governing the register of citizen's addresses and personal data and to the rules of supply of data contained therein92, since our request for data did not concern the supply of data contained in that register. Our Office did not request the contact data of a natural person but that of a private entrepreneur, based on the name and address of a store operated by that entrepreneur. Because of this the data requested should not have been handled under the rules of the register of personal data and addresses but under those of the register of private entrepreneurs and stores. The legal regulation of this data group does not provide the same level of protection as that of personal data.
The Data Protection Commissioner also made it a subject of the investigation to determine what kind of data the name and contacts are in light of the rules governing the registration and permission of stores. The notary issues the stores' licenses and also runs the registry of stores and the commercial activity thereof.93 According to the pertinent law, a third party other than the client has a right to access the case files if he/she can prove that it is necessary in order to exercise a right or fulfill an obligation.94 The notary in this specific case did not accept the reference to a procedure that was initiated in order to exercise a right, because it was not the organization authorized to investigate the infringement of the requirement of equal treatment that submitted the request for data.
The Data Protection Commissioner drew the attention to the fact that there is no need for the justification of a goal, legal basis or interest in the case of data that qualify as common data or data made public out of
87 Article 2, section 1 of Act LXIII of 1992 on the protection of personal data and Public access to data of public interest (Avtv.). 88 Avtv. 3. §. 89 Avtv. 2. § section 9., 11. 90 Avtv. 3. § section 4. 91 Avtv. 2. § section 5. 92 Article 17, section 1 of Act LXVI of 1992 on Public Records, Public Archives, and the Protection of Private Archives 93 The rules of such procedures are set out in Act CXL of 2004 on the General Rules of Administrative Official Procedures and Services (Ket.) and in Act CLXIV of 2005 on Commerce and in the government decree 4 of 1997 (22 January) on the operation of business premises and domestic commercial activities 94 Ket. 69. § sections (1)-(2).
44 public interest, since these data can be inspected by the public.95 The act on commerce and the governmental decree on the operation of businesses, however, do not qualify the data pertaining to businesses and handled by the notary as public data. The Data Protection Commissioner took the position that there exists a justifiable public interest concerning the issue and withdrawal of commercial licenses that makes the publicity of this data reasonable, which necessitates the status of commercial licenses and data pertaining thereto to be qualified as public data out of public interest.
The Data Protection Commissioner came to the conclusion that the current regulations do not make the inspection of data concerning the operator of a business possible, even though this is necessary out of public interest and to exercise certain rights and that no right or interest exists that would require the maintenance of the current practice, i.e. the private handling of this group of data. Due to the problems identified during the investigation, on 31 May, 2006, the Data Protection Commissioner sent a recommendation to the Ministry of Economy and Transport asking it to draft legal regulations that declare the public nature of the commercial licenses and business registries handled by the notary.
After the above detour we can return to the complaint of Nikoletta R. Due to the long procedure concerning the supply of data, a year passed from the time the complaint was brought to our knowledge till the time we could visit the location and test the practice of the club.96
During the testing that took place between 9 and 10 o'clock p.m. on 7 October, 2006, two non-Roma testers were asked to go to the club, take a seat, order and consume a drink and watch the service, the guests and how the manager and his employees treat the Roma testers who were to arrive after them. Two Roma testers were sent to the club with the same objective: get in, take a seat, order a drink and observe what manner they are treated in or whether they would be served at all. The Roma and non-Roma testers did not reveal that they knew each other. During the testing one of our Office's employees stayed nearby and kept contact with all of the testers by phone and recorded the experiences of the testers after the investigation. Our testers were, as always, told to avoid any provocation and reminded that their sole objective was to act naturally and observe everything concerning the service. It was not their goal to prove by all means necessary the suspected discriminatory practice.
Apart from the testing our employee conducted several interviews with local Roma, several of whom reaffirmed that the club either did not serve Roma guests or they were asked to leave after a single drink. The testing later made it obvious that Roma and non-Roma guests were treated in a very different way in the club; there existed a strong negative bias towards Roma guests. The non-Roma testers said that when they had entered the club all tables had had a "reserved" sign on them, but the manager had told them to sit down anyway. Between 9 and 10 o'clock p.m. our non-Roma testers had entered the club on two separate occasions and on both occasions had been able to sit down at the "reserved" tables, furthermore, they had not been asked to leave or give the table to someone else even after the club had been full. The waiting staff had been polite; our testers had had soft drinks and hamburgers.
Our two Roma testers - girls of similar age and appearance as the claimants - experienced completely different treatment during the same interval. As soon as they entered, the manager told them that there was a private event inside. Our tester asked if they could nevertheless drink a single soft drink. They received their soft drinks, but when they asked if they could sit down at one of the tables, the manager requested they leave and told them that all tables were reserved. Our testers asked two non-Roma guests if they knew what private event was held at that time, both guests said that they did not know that there would be a private event in the club. One of the Roma testers - seeing that many guest were eating hamburgers - tried to order one herself, but the manager told her that they did not have any food, just pretzels. Our testers then tried to order hamburgers from a lady behind the bar - later to be identified as the operator of the club - who served them. Since the girls could not sit down at a table, they tried to play on one of the slot machines. The manager - who later turned out to be the operator's husband - refused to give them change and requested that they confirm their age with their identification cards. Our testers found this unusual as most of the guests in the club were obviously minors who were served alcoholic beverages without questions about their age. (Our non-Roma testers confirmed this.)
95 Avtv. 2. §, 19. §. 96 We have described our testing methods in detail in previous reports. The test, which is capable of determining discriminatory practices calls for Roma and non-Roma testers to be sent to a club to gather experiences regarding whether their exists a negative bias in the services provided. Testing is a good fact-finding technique in to determine discriminatory practices in labour-related cases. The Governement Decree 362 of 2004 (26 December) on the Equal Treatment Authority and the Detailed Rules of its Procedure names testing as a possible mode and method of determining discrimination.
45 After confirming their age, but without receiving change, our Roma testers tried to use the slot machines with a banknote. They were in the club for 5-10 minutes by this time. They could not use the slot machine, because the manager came to them, held one of them by the shoulders, said to them: "I've already told you that today is a private event, now get out of here" and with that, pushed them toward the exit. Both the manner in which they were treated inside the club and the manner that they were thrown out of the club were deeply humiliating for our Roma testers. During this our non-Roma testers could sit at their table and order without any problems, notwithstanding the "private event". They only left the club after they saw that our Roma testers had been pushed out.
On the night of the testing, Nikoletta R.'s parents told us that the original incident shocked their daughter so deeply that it even influenced her choice of profession. The then high-school graduate girl enrolled to political sciences faculty at the university, because she decided that she wanted to continue her education in a direction where she would become able to do something against the discrimination that Roma have to endure in Hungary.
We contacted the operator of the club with an offer to settle the case out of court on 30 November, 2006. We requested that they apologise in writing for the discriminatory and humiliating way they treated our clients and pay them 300 000 forins each as compensation. We also requested that the operator declare in writing towards our Office that they will fulfill the requirements of equal treatment towards all guests, especially Roma. As we explained in our letter, we found that the manager, by denying service to Nikoletta R. and her cousin, Ivett M. and requesting that they leave the club on 2 November, 2005 violated the requirement of equal treatment. Our clients were humiliated and degraded by this procedure. The club's negative bias toward Roma was reaffirmed by interviews with the neighborhood's Roma, the tests conducted on 7 October, 2006 and the reports of the testers.
The Act on equal treatment (ETA.) declares that the requirement of equal treatment is not met if, based on one of the characteristics stipulated in the act, services are denied or omitted in premises open to clients, especially in the retail and restaurant sector or in institutions established for cultural or entertainment purposes.97
Concerning the financial compensation, we argued that experiences in legal proceedings in discrimination cases show that it is not contested by the courts any more that suffering negative discrimination causes psychological suffering to the victim; and that a way to compensate that suffering is to have the discriminator pay compensation.
The legal representative of the club's operator replied to our offer on 19 December, 2006. In his reply, he explained that his clients "truly regret the incident". The manager admits that "through his practice (denial of services) he has offended Nikoletta R.'s and Ivett M.'s human dignity." The manager however - according to his legal representative - argued that "he had problems with the dress and appearances of the guests, not with their ethnicity. Maybe impermissibly and with malice he generalized when, based on their appearances and previous bad experience he labeled this problem as such. This is not the case however, merely the surface." The common excuse of hiding ethnic discrimination in the guise of not appropriate clothing continues with another excuse we are familiar with, that of business interest:
"My clients operate the … club in …, a town where there are several non-Roma families. Most people living in the close vicinity of the club are Roma. It is obvious that my clients would not have invested tens of millions of forint in a neighborhood like this if they had had any ethnic bias. (…) As all restaurateurs, my clients are also profit-oriented, as the burdens they have taken on make the prosperity of their company a matter of subsistence. Because of this, it is possible that my clients do not wish to sell their services to certain individuals. This selection is not only made on an economic basis (depending on how "thick" my clients think someone's wallet is), it is also influenced by the current composition of the guests. (Without trying to make the impression that my clients' club is an exclusive luxury club where entrance may only be granted to white-tie donning patrons, I would like to refer to the so-called "face-control" operated in several Budapest clubs."98
The operator's legal representative closes his - in our view offensive - letter by acknowledging that "it is obvious that the humiliation that the Roma guests Nikoletta R. and the minor Ivett M. suffered was real and regrettable" He finally added that they accept our offer regarding the apology and declaration of non-
97 Section 30, point 1(a) of the Act CXXV of 2003 on Equal treatment and the promotion of equal opportunities.. 98 Quotes from the letter written by the club-operator's legal representative.
46 discrimination to be made to our Office, but wish to decrease the compensation payable to 100 000 forint, based on the long time that has passed since the incident and the club's capacity.
After negotiating with our clients and their families, we accepted the offer because, as Nikoletta R. stated it, the main goal of the compensation was not financial but moral. In our letter written to the legal representative of the club's operator, we declared that we will accept the offer under the following conditions: our clients, Nikoletta R. and the minor Ivett M., in spite of what was stated in the letter of the legal representative, went to the club on 2 November, 2005 in appropriate clothes, no objection could have been raised against their appearances. We find the manager's subsequent excuses about not serving our clients because of their clothing hurtful and untruthful. Based on our fact-finding, the manager declared that he denied service based on their Roma ethnicity "because he has previous bad experience with Roma" on two separate occasions, once to the clients themselves and once to Nikoletta R.'s father. The testing conducted by our Office also confirms the fact that selection is not based upon clothing, but rather upon ethnicity. Our Roma testers were similarly well-kept and civilized, and received a strikingly worse service than our non-Roma testers.
In January, 2007 the operator of the club and her husband, the manager, beyond paying a compensation of 100 000 forint, apologized in a letter with the following text:
Undersigned …, as the operator of … club and …as the manager thereof, apologize for denying you service in the club on 2 November, 2005. With this humiliating act we have violated your human dignity. We shall, in the future refrain from all discriminatory acts."
As part of the agreement, our Office received the following declaration:
Undersigned …, as the operator of … club and …, as the manager thereof hereby declare to the Otherness Foundation, Legal Defence Bureau for National and Ethnic Minorities, that in the future during the operation of the club we will observe the requirements of equal treatment as set out in § 30, point 1(a) of the Act CXXV of 2003 on Equal treatment and the promotion of equal opportunities. We will observe these requirements when dealing with Roma guests also; we shall refrain from any discriminative behaviour."
As agreed our Office pledged not to take any further legal steps concerning the incident on 2 November, 2005. Nevertheless, we upheld our right to test the club's practice and if necessary turn to the authorities or court if we receive further reports of discrimination.
47 Case of Ms. Anita G.
In November 2006 we received a letter from the notary of the city of E., to which a complaint was attached referring to a discrimination committed with regard to a publicly available service „to further attention”. We would have regarded the cooperation initiative of the notary with our office as a positive one, if the case, which was referred to as for further examination, would not have belonged to his competence (as well).
Mrs. G. Gyuláné, Ms. Anita G. and Ms. Ildikó G., all are residents of the city of E., turned to the notary of the city in a letter on 10 October 2006, in which they filed a complaint against the operator of a convenience store of the city, stating that it does not serve a significant part of the local Roma residents. As it was revealed in the letter, this was not the first time that the Roma clients requested the notary’s assistance against this store, but no action had been taken so far. Consequent to the filing on 10th October, the applicants were made to sign a request form at the mayor’s office on 15th November, in which Ms. Anita G. asks them „to forward the complaint filed against the company to the Legal Defence Bureau for National and Ethnic Minorities”.
The Office conducted a testing procedure in December 2006 in the affected convenience store. During the testing, Roma and non-Roma testers were assigned to attempt to by items in the store, and then report to our staff about their experiences, and to fill out a questionnaire prepared by us. At the testing, the applicants Ms. Anita G. and Mrs. Attiláné G. went to the store along with our non-Roma testers. During the procedure it was revealed that the complaint of the G. family that the staff of the store treats them with a discriminatory and humiliating manner, and that service for them in the store is rejected is true. The testing also discovered that while certain Romas are served in the store, some families living in the neighbouring Roma-streets are not.
Following the testing procedure two of our testers tried to channel the conflict towards settlement, for it seemed that the manager of the store and the staff members themselves feel embarrassed about the conflicts resulting from the rejection of service. They told that they would let anyone to the store, but it is the order of the owner that certain families cannot shop in the store. The mediation between the staff of the store and the applicants turned out to be successful, for according to the feedback of the applicants one week later, everybody was able to shop. As we know it, the owner of the shop lifted the discriminative ban on his attorney’s advice.
After the successful closing of the case, we turned to the notary in a letter, in which we informed him about the result of the testing, and that as far as we know it the conflict has been resolved. Furthermore, we called his attention to the fact that according to the Act on Commerce the supervision of the compliance with legal and authority provisions regarding commercial activities is performed – among others – by the notary. 99 The decree regulating the conditions of operating shops and domestic commercial activities100 also assigns tasks to the notary with regard to the supervision of the legal operation of shops. Finally, according the decree on the tasks and competences of the local municipalities and its bodies within the domestic commerce branch, the notary is responsible for the tasks and competences in connection with the operation of shops. 101 Furthermore we called the notary’s attention to that as per the Equal Treatment Act it is considered as a breach of the requirement of equal treatment if the provision of services or the sales of goods is rejected or ignored in premises open for public business – including commercial institutions – based on a characteristic defined by this act. 102
As we explained it in our abovementioned letter, considering the above and that based on the provisions of the Act on Administrative Procedure103 the authority is obliged to act in a case belonging to its competence within its jurisdiction, we think it is deficient that the notary did not launch a procedure based on any of the applications of the G. family. In our opinion the relevant law on commerce and the Act on Administrative Procedure assign an obligation for the notary to conduct an administrative procedure. If the notary had the opinion that he is not able to oversee the illegal operation and practice of the store, he should have transferred the application to a different authority having competence and jurisdiction (e.g. Equal Treatment Authority, consumer protection agency).
99 Article 9. Section (1) on the Act on commerce no. CLXIV. of 2005. 100 Article 8. Section (1) of the Government Decree no. 4/1997. (I. 22.). 101 Article 1 subsection h) of the Government Decree no. 26/1992. (I. 28.) 102 Article 30. Section (1) of the Act CXXV. of 2003 on equal treatment and the promotion of equal opportunity 103 Article 20 Section (2) of the Act on Administrative Procedure
48 In our letter we asked the notary to pay increased attention to the stores operating in the city, especially the operator and staff of the concerned store complying with the requirement of equal treatment. We have not received reply to our letter.
49 CRIMINAL AND PETTY OFFENCE PROCEDURES
50 Case of Mr. János K.
The authority wanted to temporarily revoke the driving licence of Mr. János K, of Roma origin because of a bumping road accident. As per the man the policemen arriving to the scene treated him with a humiliating and negligent manner, they had a strikingly different attitude towards him than to the other participant of the accident, who was a non-Roma.
Mr. János K. was driving his car in the city of R. located in Pest county, when he bumped into another car at a crossing. The driver of the other car called by his mobile phone police officers whom he apparently knew very well, though the nature of the accident did not require the involvement of the police whatsoever. The policemen took measures at the scene, yet Mr. János K. was not able to hand over his personal documents and the documents of the car, for he lost them not long before the events. The policemen treated Mr. K. and his companions with a despising manner, they told that they should not try to think about stating that Mr. K. did not infringe the traffic rules for false testimony is a crime. At the same time they welcomed the other affected person as their acquaintance, they used an informal language, so the biased nature of the actions appeared to be questionable even at that stage.
According to Mr. János K. and his travelling companions the reason of the biased actions could evidently be related to their Roma origin, this could be felt from the attitude of the officers. According to the applicant and the witnesses, for that matter, it was the other party who exceeded the speed limit, so Mr. János K. was not able to detect him in time in this crossing that is hard to oversee, and that was the reason for the accident. Such statements of the affected persons were not considered during the actions.
The acting police officers promised to the man bringing up his excuses that he would be called to a hearing concerning the circumstances of the accident on a later date, but it did not happen, the decision of the minor offence authority was simply posted to him.104 According to the decision, the man committed the minor offence of disturbing the order of road traffic, and is to pay a fine of HUF 60 thousand. Simultaneously the authority banned him from driving for 5 months. Especially the latter measure affected the applicant in a very negative way, for without a driving licence his subsistence was jeopardized as well. The man had been travelling to the capital day by day for years to undertake various construction works, for there is no employment opportunity in his local town and area.
Mr. János K. submitted an appeal against the decision to the City Court of Ráckeve, in which he explained that in his opinion the measures taken were not lawful, the oficers were biased, and otherwise their involvement was not necessary. He objected that the statements of him and the other witnesses were not considered during the procedure. Though he did not explicitly ask the court to repeal the decision, the appeal was aimed to that in its merits, and secondarily, he requested to mitigate the sanction imposed. This latter request proved to be successful, for the court mitigated the amount of the sanction to HUF 50 thousand, and the period of driving ban to 4 months.
Mr. János K., however, still regarded the sanctions as unfounded, so he turned to our Office stating that the serious sanction imposed was a result of police measures being unbiased due to his ethnicity, and he would like to have the case tried. Our office – though there were no evidence available to prove that the measures were discriminatory – undertook to provide legal assistance in the case, for the witnesses could prove at the court that the acting police officers took measures in an unprofessional, illegal way. At a trial it is possible to review the findings of facts on a much broader level, which would enable the court to decide on findings of facts differing from those recorded by the infraction authority. The court has not yet scheduled a date for the trial, Mr. János K. is represented in the case by attorney dr. László Bihary.
104 This usually does not take place, though as per Article 83. of the Act LXIX of 1999 on infractions the authority is obliged to reveal all findings of facts, so it can hear the person under procedure again if necessary.
51 Case of Ernő S.
Ernő S., a 22-year old man, has been working as a musician for a long time. On the night of 5 August 2005 he performed with the Kalyi Jag Caravan (a Roma music band) in a settlement (D.) located in Szabolcs-Szatmár- Bereg county. Following the closing of the program at 11 p.m. , the performers and their audience held a party together until 1 a.m. Afterwards Ernő S. and his three passengers returned to Budapest, where Jolán R. was the last to get out of the car in front of her apartment at 4.15 a.m. More than a month passed when Ernő S. was taken to the police station and later also taken into pre-trial detention together with his friend, László A. They were accused of having committed a group robbery while Ernő was driving home to Budapest. Both of them consistently denied and still deny to have been involved in the incident. Although plenty of evidence establish that they are innocent, the first-instance court, the Central District Court of Budapest, sentenced them to four year imprisonment on 26 June 2006. The hearing of the second-instance court is scheduled to February 2007. Therefore the two gentlemen will have to spend a total of more than 1.5 years in pre-trial detention until the next court hearing.
On 6 August 2006 between 3 and 4 a.m. Ferenc B., his common-law wife and István J. were sitting in the underpass of Budapest Keleti Railway Station in front of the ticket office of the local public transport company (BKV). They were drinking alcohol when a Roma family approached them, which consisted of three adults and two children. One of the Romas asked Ferenc B. for light, and afterwards without saying anything slapped him at the face, then all the adult Romas started to kick and beat the man. They tore off his golden necklace, his watch and ran away from the scene. The heavily drunk company set off for home but on arriving at Józsefné P’s place she said that she would not let these people get away and went out to find a police officer. The police arrived soon and recorded the facts in the police report.
One month after this incident Ernő S. and László A. were sitting in a car and listening to music loud in the Roses’ Square . they were talking to girls. A couple of police patrols told them to turn down the music. Ernő S. gave them his mobile number out of joke telling the officers to call him if they look for someone who plays music. On getting back to the police station one of the patrols believed that the description of one wanted person (being wanted because of the robbery mentioned above) fits Ernő S, therefore he and his friend were taken to the police station on 17 September, told that they were accused of having committed a group robbery. Both of them were taken into pre-trial detention. It must be noted that the two gentlemen, and especially Ernő S., have characteristics “generally” attributed to the Roma, in other words their general appearance is “Roma- like” – mid-strong body, black hair, brown skin – which means that the personal description could have fitted several other young Roma men of similar age and appearance.
Ernő and his friend consistently denied and alleged that one of them was more hundred kilometers far from Budapest playing music at a festival while the other person was sleeping at home in his own place on the night of the crime they were accused of. Ernő S’s defence was supported by numerous witnesses, inter alia by a Roma lady’s at whom the company had dinner before they started back to Budapest late at night. The lady said that her guests left her place at around 1 a.m., they drove with two cars and had to drive to Budapest 300 kilometers. This statement was corroborated by those witnesses who traveled together with the defendant. For example one of the women traveling in the car alleged that she got out of it between 4 and 4.15 a.m in Pesterzsébet. Zsolt F., who set off from D. together with Ernő S, said that he talked to Ernő S several times via phone on the way back home.
In course of the court proceedings the so-called cell-information of the defendant’s mobile phone was also obtained. This information proves objectively where (in the region of which tower transferring the waves) a mobile of a given number was used. On the basis of the cell-information it can be established as a fact that at 0.54 am the mobile was used in the settlement (D.) and in Budapest at 4.19 a.m..
Meanwhile, as later corroborated by witness statements, the other defendant, László A was sleeping at home next to his wife. The court later held that the two defendants previously had the opportunity to arrange a meeting for the middle of the night at the Keleti Station, therefore it not impossible at all that they had committed the crime.
The defendants version was again supported by the fact that they were both non-smokers, which was corroborated by many witnesses. They are still placed in non-smoking cells. However the victims said that the perpetrators were smoking and the whole incident started when one them asked for light..
52 The victims made several witness statements during the criminal procedure that were self-contradictory and contradicted to each others’ statement as well, still the court held their statements to be „stronger” (erősebbnek) than those supporting the alibi of the Roma defendants. It is proven as a fact that the victim and his peers were alcoholic, homeless people who were drinking beer at the time of the incident and they themselves told to have been heavily drunk during the attack. It remained to be a question without answer whether there were three or two people in the underpass since István J. told the police officer on the night of the incident (as proven by the officer’s report) that Ferenc B., the victim, and Józsefné P. went to his place after the robbery to clean the blood from Ferenc B’s body, but he himself was not present at the attack. Despite this fact later he recognized the perpetrators, although he did not remember what clothes the perpetrators wore or whether the lights were on or off in the underpass. Later he said before the court that he saw the event from far away and believed that the perpetrators were not the defendants. However, the court held it unlikely that István J’s memory would improve after one year and therefore accepted the statement when he recognized the defendants in autumn. But the court did not elaborate on the puzzle that if on day of the attack István J said the police officer that he had not been present at the scene than why the court held that he was present although he was standing a bit far from the actual incident, what the witness said later just like that he did not recognize the defendants.
As it has already been mentioned, it is also uncontested that the victim and his peers were heavily drunk at the time of the crime, so very drunk that they could not give an exact number of the perpetrators or their sex, they were unable to describe the position or the age of the children who were allegedly present together with the perpetrators. The allegedly stolen jewellery were not found at the defendants, and Ferenc B. made contradictory statements as to their value. The third perpetrator has not been caught either although the victim and his peers were sure that three people attacked them. This is an extremely interesting thing about the case as the court held the defendants guilty of group robbery while the court could not explain of whom the group consisted. The court did not even make an attempt to explain how the perpetrators could make up a group and in case there were more offenders who they were.105
The most important pillar of the accusation was the recognition of the perpetrators by the victim and his peers. The victims recognized the defendants beyond any reasonable doubt the defendants from four different photos shown by the investigative authority. However, there are certain concerns about this evidence as well: six of the eight photos were dark and blurred and two of them light and of good quality: these were the photos of Ernő S. and László A. The victim and his peers normally pointed at the eye-catching photos just like any person would usually select a piece in an odd-one-out game that does not match the other items. Not surprisingly, the victims also recognized the defendants at confrontation as well. It could also contribute to the “successful” recognition that just before the confrontation of the defendants with the two male victims, one of the police officers told his colleague in the corridor very loud that Józsefné P, who had close relationship with both of the persons concerned in different periods and consequently had a great influence on them, recognized those people who were to be shown to them in a minute.
In this case Ernő S’s father turned to our Office asking for help. As we are usually reluctant to defend a client in a criminal procedure, at the beginning we did not assume the case and but decided to keep an eye on it. Afterwards we contacted the lawyer defending Ernő S. who confirmed the family’s statement that the impartiality of the judge can be questioned. The lawyer informed us that his motions for evidence are always rejected without reasoning. Numbers of possible witness were not summoned, which is inexplicable because they could have proven the innocence of the defendants or corroborate their alibi. One the witness would have been the employee of the patrol where Ernő and his passengers stopped for a coffee on the night of the crime. The lawyer wanted to use the employee’s statement and the record of the surveillance camera of the station as evidence in defense of his client, however his motions were already rejected in the investigative phase. The rejection of the motion by the court was justified by saying that after such a long time the witness could not remember the defendant. The reasons for this opinion of the court were never explained. The hearing of the witness would have been crucial because he could have proven that not much before the crime was committed the defendant was more than 200 kilometers far from Budapest. After the first-instance court delivered the
105 Under Article 137 point 13 of the Criminal Code a crime shall be committed in group if there are at least three offenders involved. As per Article 321. § (1) of the Criminal Code the person, who takes away an alien thing for the purpose unlawful appropriation from another person by applying violence or direct menace against life against somebody or puts somebody into an unconscious state or state of incapability for defence, commits a crime, and shall be punishable with imprisonment from two years to eight years. According to the point a) subparagraph (3) the punishment shall be imprisonment from five years to ten years, if the robbery is committed as a part of criminal conspiracy or in a group.
53 verdict, a journalist interviewed the patrol station employee who happened to remember Ernő S and also time when the cheerful Roma group stopped at the station for a coffee.106
The middle-aged woman was not heard either, who was the victim of a very similar crime committed on the same night of 5 August 2005, on the same spot, in the underpass of the railway station. The perpetrators have also asked her for light, their number was also three and there were children with them as well. Although the lady was heard in the investigative phase who stated categorically that not Ernő S and László A. One should consider how likely it is that a group of criminals operate in the same time and at same place with completely same method. However, the court adjudicating in this case did not agree with this line of argumentation and rejected the attorney’s motion for the hearing of the concerned women in the court phase.
On the last hearing of the first-instance procedure, which lasted all-day long, we participated as an observer and the case attracted wide media coverage as well. It is not exaggeration to say that all the protectors of rights and journalists sitting in the court room believed that the facts of the case were unclear, the statements of the victim and the two witnesses are full of contradiction. Contrarily, the witness statements supporting the innocence of the defendants were so coherent that if for no other reason at least on account of lack of evidence the defendants had to be acquitted. Beyond all these considerations the defendants clean criminal record, there normal way of living and good financial and social situation reinforced the feeling in everyone that the motivation for committing such a crime was also lacking in the instant case. Both of the young men have wife and small children, they have work and regular income. Ernő S. is a professional musician performing in a popular Roma music band, which gave a concert on the night concerned. However, on 26 June 2006 the court held both of the defendants guilty in group robbery and sentenced them to four years imprisonment.
Although the communication of the court decision was commenced with the reasoning of the verdict which contained that “the court had no doubts whatsoever that You committed the robbery"107, it remained unclear that if the court was so confident that the defendants were the perpetrators than what was the reason for imposing four years imprisonment while the sanction foreseen by the law was between 5 and 10 years deprivation of liberty. We are not suggesting that anyone wanted more severe punishment. But it makes us stop and think that if the defendants indeed committed the crimes they were accused of why the court applied such a “mild” sanction. Also, if the court had doubts about the guiltiness of the defendants what was the reason for rejecting all the motions for gathering further evidence. Why did not the court devote more time and energy for clarifying the facts of the case?
The verdict, which in our opinion was rather confused and could be criticized for plenty of reasons, did not explain the motive for committing such a violent crime by the young men with good financial situation and clean criminal record on a night when one of them drove hundreds of kilometers and also performed in a festival. In relation to this issue the court only said that „The motive for committing this crime by the two defendants with good financial situation who also lead a normal way of living was not revealed in course of the evidentiary procedure. However, it could be established beyond reasonable doubt that the intentional crime was committed by the defendants.”108 It is also a mystery how Ernő S could arrive from D., which is located 300 kilometers far from Budapest, to the capital and meet László A. and an unknown person to commit a group robbery. The testimonies corroborating the innocence of the defendants were excluded by saying the witnesses had the opportunity to arrange in what to say before the court. But is not clear why this assumption did not hold for the witnesses of the other side who also knew each other and made several self-contradictory statements which also contradicted to each other’s testimony.
The court decision was accepted by the prosecutor and the attorney appealed against it for the acquittal of the defendants. After the communication of the verdict the attorneys proposed to release of the defendants from pre- trial detention which was rejected by the court. Therefore the two young men will spend around 1.5 years in pre- trial detention until the hearing of the court of second instance for a crime they deny to have committed and which was committed at a time for which both of them have alibi corroborated by several witnesses.
The hearing of the second-instance court is scheduled for 7 February 2007 by the Metropolitan Court.
106 The case was reported by the weekly titled „Magyar Narancs” (Hungarian Orange) on 6 July 2006. (Gábor Miklósi: Some doubt: Ernő S. and László A. before the court) (http://www.mancs.hu/index.php?gcPage=/public/hirek/hir.php&id=13335/).
107 A Pesti Központi Kerületi Bíróság az ügyben 16.B.VII.35.932/2005/33. számon hozott ítéletet az ügyben. 108 Részlet a fenti ítéletből.
54 Ernő S. will be defended by attorney Aranka Zárai who was commissioned by the family and our Office.
55 REPRESENTATION OF VICTIMS IN CRIMINAL PROCEDURE
56 Case of Ferenc N.
On the afternoon of 7th August 2006 Mr. Ferenc N., a 55-year old man of Roma origin, living in the village of Cs. in Szabolcs-Szatmár-Bereg county was heading home on his bicycle, when he spotted fallen grains of corn in the trench parallel to the road. For he often goes fishing at the fishing lake of the village, he thought that he would collect some the corn for fishing. As he climbed up from the trench, one of his neighbours in the village approached him with a blade applied on a long wooden stick in his hand, with which he stabbed the old man in the stomach, then left him on his own. The attacker had made anti-Roma statements before several times, and he is in constant conflict with the gypsy-origin residents living in his neighbourhood in connection with the use of the road concerned.
Mr. Ferenc N. was able to walk a few hundred meters on his own feet, and then he lost consciousness. Fortunately he collapsed in the street he was living in, thus the children in the area came to rescue him. The ambulance carried him to the hospital in Nyíregyháza in a desperately injured condition, and he had to go through several operations.
According to the medical documents available he was diagnosed with an open wound of the abdomen, an injury of the small gut, and that these were caused by a sharp device. The victim was hospitalized in a shocked condition, where he could not provide any in-merit information to the doctors.
After the ambush the police officersarriving to the scene – as told by the family of the victim – spoke to the perpetrator, and consequently they claimed to the family members that it was an accident. The attitude changed only when the representatives of the county police department arrived to the scene; at that time were the relatives of the victim heard.
According to the relatives of the victim the attacker exclaimed several times after the stabbing in an audible manner that he feels he had done the right thing, and he threatened others even the next day, that others can have the same fate if they go there. It has to be added that the man and his family have been thinking for quite a time that the road on which Mr. Ferenc N. was also heading home, is not a public road, but is owned by the family, so no one may use it, especially not the Romas living there. There were conflicts earlier due to the hostile attitude of the man towards Romas and to the road use.
As told by the victim and his family later, this was not the first time when an incident resulting in violence occurred between the attacker and the Roma residents living nearby. At one occasion a grandchild of the victim was attacked, but the family did not file a report of that time.
After leaving the hospital, the victim was heard in his home again, and medical expert reviewed his injuries. Based on the expert’s opinion the investigating authority changed the case to suspicion of serious assault causing life-threatening injuries, discarding the „version of an accident”. It is important to highlight that the police heard the victim at the hospital - just two-three days after the life-saving operation -, despite the fact that he told them that he is not able to make an appropriate testimony due to his health condition. The hearing took place anyway, which was recorded by the officers by handwriting, and they had him sign his testimony, though – according to the man – one of the doctors of the hospital asked the police officers not to disturbe the freshly operated patient. This was complained about on the first day of the trial by the attorney representing the victim. It is also worth pointing out that the non-Roma man suspected with committing the crime of serious assault causing life-threatening injuries was not put even under short-term arrest. 109 Though there are no official statistics on this issue, our experiences show that in case of crimes with similar severity where the suspect are Roma pre-trial detention is generally ordered. In this publication we present the case of Mr. Jenő S. and his
109 As per Article 126. Section (1) of the Act XIX of 1998. on criminal procedure the short-term arrest is the temporary restraint of the personal freedom of the defendant. As per Section (2) short-term arrest may be ordered in case of well-founded suspicion of a crime that may be punished by imprisonment – especially in the case of being caught red-handed -, provided that the pre-trial detention of the defendant may be assumed.
57 partner who have been under pre-trial detention for an alleged robbery for more than one and a half years now. 110
It is typical that in the news coverage of the case our client is presented as a thief caught red-handed, while the perpetrator appeared as a desperate farmer standing out for the protection of his private property. In the on-line edition of the Zsaru Police Journal an article was published with the title „Thief speared” about the case, in which the author writes the following, among others:
„Imre T., living in the village of Cs. in Szabolcs county was deeply irritated that scallywag slugs are looting the corn. As he expressed often he does not intend to work day and night in order to have the fruit of his hard labour harvested by others. Enough is enough! He thought, he gets prepared to meet the scum. He slashed a large vine stick in the middle, inserted the blade of a large knife there, and attached it to a tree by nails. The conceived weapon resembled the spear of the caveman, and he did not have to wait for long to test it.” 111[1]
Upon the closing of the investigation the files were sent by the police to the prosecutor’s office with a proposal of indictment, then the Chief Prosecutor’s Office of Szabolcs-Szatmár-Bereg County issued a bill of indictment for the crime serious assault causing life-threatening injuries. Unfortunately it seemed from time to time that the authorities involved in the criminal procedure (police, prosecutor), but even the court had the same attitude towards the case as the media. For instance, the bill of indictment does not start with the review of the findings of the facts, but with the statement of the psychiatrist that the defendant was hugely limited to recognize the threat of the crime imposed on the society. The viewpoint of the legal representative of the victim somewhat differs from this, with regard to the fact that in case of crimes against human life the threshold of recognizing the threat imposed on the society is lower. For it can be expected even from a person having a narrowed mental condition to recognize: if he/she stabs somebody with a knife or other device that may cause death, this may lead to the death of the other person. Obviously the court will have to judge on this issue.
The first day of trial held on 22th January 2007 was not without problems, for it is very hard to communicate with the defendant, sometimes he does not understand the question, and it is also hard to follow his answers. Still, the biggest surprise for the legal representative of the victim was that despite the fact that the subject of the indictment is the stabbing, and not the alleged stealing of corn, the victim was only questioned about the alleged theft. The victim denied any stealing, yet both the questions of the judge and the prosecutor (!) were nearly exclusively aimed at this issue, furthermore they inquired about the alleged oral dispute between the defendant and the victim, and about whether the victim hit the defendant approaching him with a spear on the head. While naturally the findings of the facts should be revealed in full, it was striking that the fact of the stabbing and the details of it was reviewed by the court less thoroughly than whether the victim indeed stole or hit the defendant. Mr. Ferenc N. even asked it several times that even if he had stolen would it be acceptable and proportionate to receive a stabbing in the stomach resulting in life-threatening injuries, which left him disabled, and unable to work anymore.
Considering that further witnesses should be heard, the trial will continue in March 2007. The victim is represented by attorney dr. László Bihary on assignment by our Office.
110 As per Article 129. Section (1) of the Criminal Procedure Code re-trial detention is the judicial deprivation of the defendant’s liberty before the delivery of the final and non-appealable sentence. As per section (2) pre-trial detention if a) he/she has escaped or hidden from the court, the prosecutor or the investigative authority; he/she has attempted to escape, or during the procedure another criminal proceeding is launched against him/her for an offence punishable with imprisonment; b) taking into account the risk of his/her escape or hiding, or for any other reason, there are well-founded grounds to presume that his/her presence at the procedures may not be secured otherwise; c) there are well-founded grounds to presume that if not taken into pre-trial detention, he/she would – through influencing or intimidating the witnesses, eliminating, forging or hiding material evidence or documents – frustrate, hinder or threaten the procedure; d) there are well-founded grounds to presume that if not taken into pre-trial detention, he/she would accomplish the attempted or prepared offence or would commit another offence punishable with imprisonment. 111[1] http://www.hckr.hu/zsaru/modules.php?name=News&file=article&sid=1718
58 Case of Mr. Gusztáv G. and others
On the evening of 27th October 2006 in the city of D. some police officers performed an identity check on a group of five Roma young people who were heading to Budapest. The group – which was planning to go out – was held back then held up at the local police department. As it was revealed later, they were suspected with a theft committed a week ago in a church in the area. During the interrogation three of them were ill-treated, and were forced to admit that they had committed the crime. The persons were released early in the morning, who went back home and visited the local hospital to have themselves examined. One of them suffered injuries with a healing time exceeding eight days, while the others were recorded with minor bruises. On 24th November 2006 our office filed a report to the Prosecutor’s Investigation Office of Bács-Kiskun County.
Mr. Gusztáv G. is twenty-five, Mr. József H. is seventeen, Mr. István K. is seventeen, Mr. Rómeó Sz. and Mr. György S. are fifteen years old, all residents of the city of K., located in Bács-Kiskun county. On 20th October 2006 they partied together in a club in Budapest. While travelling there they stopped at the city of D. at a gas station and bought motor oil and water. On the next morning, then on the road back they stopped at the station again, and bought cigarettes and soft drinks, and they also filled gas.
One week later, on 27th October 2006 they departed together again, but this time they could only reach the city of D. The police officers performed identity check on them, and they were held back. As it was revealed, a video recording was made a week ago, when there was a burglary in a local church, they appeared at the gas station. All of them were held up and carried to the local police station, where their interrogation began.
Upon arrival, their clothes were searched, and Mr. Gusztáv G. was sent to the car in order to be searched as well. Three detectives and a uniformed policeman were present in the courtyard at this stage. The applicant was handcuffed, and the car was searched, however, nothing was found. The ill-treatment of the person started at that time: according to his telling he was beaten, kicked and called „all kinds of stinky gypsy”, and they also wanted to know what he had done in the previous week.
After approximately ten minutes the applicant was carried up to the held-up room, where it was told to him that a week ago there was a burglary in a church of a neighbouring village, and among others, a chandelier was taken away. As told by the officers, a video recording was made of it. The ill-treatment continued in the hold-up room, primarily the head of the victim received beatings. He was called a „gypsy” here as well, and he was told: „you son of a bitch, it was you for sure who was driving the car.” One police officer hit him on the face so badly that his nose started to bleed, then the ill-treatment was stopped. The events in the hold-up room, then his interrogation as a suspect was started, where our client denied committing the crime he was charged with. Consequently he was photographed, fingerprints and smell sample was taken, then he had to wait for the others on the ground floor of the building. They were released at quarter past four a.m., and Mr. Gusztáv G. drove all the way back home, but they had to stop several time, because he felt sick.
For his nausea did not cease he went to the local hospital on the very day, where he was examined at the surgery department, and it was stated that there is a superficial bruise of the skin behind the left ear, there is a haematoma above the nose and there is also a haematoma the size of a child’s palm on the left upper arm. During the examinations two days later it was proven that his nose was broken, and his eardrum was pierced. The expected healing time of the injuries was thirty days.
Mr. István K. was brought to the police department by a police car along with Mr György S. after the identity check. They were questioned about the burglary even in the car, and the policeman sitting in the front right seat slapped the applicant once. Upon arrival to the police department, Mr. István K. was also interrogated in connection with the burglary in the church, while the two police officers conducting the interrogation hit his head and face several times, and kicked his back and chest a few times as well. The two interrogating officers were not uniformed, according to the applicant they even threatened him with a gun while they tried to get him to admit the theft. The ill-treatment and the shouting was overheard by Mr. József H., who was in one of the nearby interrogation rooms. He heard the boy shouting „mommy please help me”. The boy was handcuffed to the bars of the stairs on the first floor of the department, and he was ill-treated there as well. According to him even a police woman slapped him on the face one time.
Due to the ill-treatments and fear the young man admitted committing the crime in his testimony as a suspect, yet his legal guardian was not present during the interrogation. After that they stopped ill-treating him, and he was released with the others in the morning.
59 In the afternoon of that day Mr. István K. went to the hospital, where he was examined in surgery department. As per the findings of the examination he had a headache and nausea as well, and there were several haematomas having the size of half a walnut detectable on his head covered by hair.
Mr. Rómeó Sz. was brought to the police department of K. along with Mr. József H., where he was placed in an interrogation room. Two policemen were there who were armed. The interrogating officers hit his head several times in a way that his ear started to bleed. His back was beaten several times as well, and his arm was twisted. Meanwhile they were telling him foulmouthed words, and made rude statements on his Roma origin. The ill-treatment continued when fingerprints were taken from him and photographs were made. According to his telling they threatened him that if he fails to sign the protocol of the interrogation as suspect, they will shoot him. Upon the effect of these he also admitted committing the crime of theft, without his legal guarding being present. Mr. Rómeó Sz. also went to the surgery department of the local hospital where he told that he has nausea, a buzz in the ear, and his nape and back aching. The examination stated that on the right part of the head covered with hair there is a haematoma having the size of a walnut.
The local Roma representative, Ms. Katalin Sz. turned to our office right after the events, and asked for our assistance. After reviewing the facts and hearing the applicants we decided to file a report to the prosecutor’s investigation office of the county with regard to the three victims. Mr. József H., who is only of half Roma origin, and his name also does not refer to his ethnicity, was not ill-treated, what’s more, he was asked why is he with „such persons”. In the case of Mr. György S. there was a medical record, still the doctors recorded no visible signs of injuries, so we decided not to file a report in his case, these two boys will be witnesses in the case. The report was filed by attorney Ms. Erika Muhi, representative of the victims on 24th November 2006. The prosecutor’s investigation office has not yet decided on launching an investigation.
60 Case of Péterné B.
In August 2006, Péterné B., her son and relatives bought food at the local petrol station on their way back home from picking elder. Afterwards they seated at the tables in front of the entrance to eat what they purchased. However, the petrol station attendant who has just arrived to the spot chased away the women and children shouting “you stinky gypsies won’t eat here”. Later, Péter B. arrived and when caught sight of his wife’s and son’s bicycle on the ground, he asked for explanation from those working at the petrol station. During the quarrel, the petrol station attendant once headed the Roma man in a way that caused the man injuries that healed over eight days. The police started criminal procedure because of vandalism and other crimes; both men got suspected.
On the day the crime was committed the complainant and his relatives were picking elder in the surroundings of the settlement. After having worked the whole day long, they handed down the goods around 5 p. m. and since they were tired, they went to the petrol station situated on the edge of the settlement to buy some food. They purchased salami, bread, croissant and yoghurt, then seated at one of the tables. Péterné B. also sent her son to the shop to buy some refreshments for what remained of their money, when one of the petrol station attendants, Mihály L. arrived. The man catching sight of the Roma people starting to eat, ran to them shouting “you stinky gypsies won’t eat here any more”. Meanwhile, he jumped on the table and kicked away the food, then pulled Péterné B. by holding her upper clothes and kicked in her thigh one more time. The Roma family escaped from the spot leaving their bicycles behind. Two of them ran across the cemetery, while another two escaped towards the cornfield behind the petrol station. The two women ran to the house of an Austrian citizen, told him their story crying and asked him to take them home.
Péterné B. had no conflict with the petrol station attendant before; therefore what happened hurt her really bad. Nevertheless, she reported the case to the police mainly because later this man assaulted her husband as well. Péter B. was also heading home around 7 p. m. that day, when he caught sight of his family’s bicycles. He entered the shop at the petrol station and called those working there to account for why the bicycles were there. A short dispute developed, they shouted, quarrelled, then Péter B. left the premises. Meanwhile, Mihály L. and his girlfriend arrived to the spot with their car in order to drive Mihály L.’s mother home, who was working there. Péter B. stepping out of the shop and Mihály L. getting out of the car met and a fight developed between them. Péter B. flailed with a knife in his hand, whilst Mihály L. headed the Roma man once with medium intensity. In the end Mihály L.’s mother and girlfriend separated the fighters and Péter B. went home with a bleeding head.
On his way home, he dropped in on the local doctor, who examined him, took care of his wounds, but did not call the ambulance. Arriving home, Péter B. told his family all the things that happened to him and then he got known about the events of the afternoon. Under the family’s press they decided to call the police and also the ambulance, because Péter B. was still bleeding. The food and bicycles left at the petrol station were finally brought home by the police, while in the hospital of Nagyatád it got established that Péter B.’s nose got broken, which is an injury considered to heal over eight days.
A criminal procedure was started against Mihály L. at the Police Station of Nagyatád because of the reasonable suspicion of the crime of vandalism112 and the felony of aggravated battery113 due to the report of Péter B. and
112 Pursuant to Article 270 of Act 4 of 1978 on the Criminal Code, vandalism: (1) The person who performs such an intensively anti-communal, violent conduct, which is suitable for inducing indignation or alarm in other people - unless a graver crime is realized -, commits a crime, and shall be punishable with imprisonment of up to two years, labour in the public interest, or fine. (2) The punishment shall be for felony imprisonment of up to three years, if vandalism is committed a) in group, b) gravely disturbing public peace. (3) Banishment may also take place as supplementary punishment. 113 Pursuant to Article 170 of the Criminal Code, battery: (1) A person who injures the bodily integrity or health of another person, if the injury or illness heals within eight days, commits the crime of simple battery, and shall be punishable with imprisonment of up to two years, labour in the public interest, or a fine. (2) If the injury or illness caused by battery heals over eight days, the perpetrator commits the felony of aggravated battery, and shall be punishable with imprisonment of up to three years.
61 his family. At the same time, Péter B. was also suspected with the crime of vandalism due to the report of Mihály L. We were unable to influence this part of the procedure, because the family turned to our Office after the investigation had ended. It was also a problem for us that although the case started with the attack against the Roma family, later Péter B. tried to do justice by picking a fight with the petrol station attendant, moreover – according to the files – he had a knife with him. Since the racist-motivated attack against Péterné B. was also a part of the events serving as the basis of the proceedings, we accepted the mandate as the legal representative of the injured party, Péterné B.
The witnesses interrogated during the investigation completely corroborated what the injured party said. The women and their sons explained the events unanimously and consistently throughout the proceedings. Many other persons told the story in a similar way. The girlfriend of Mihály L. said the following during her police interrogation: “… only when I came out of the building of the petrol station, I saw those Roma women leaving and I heard that Misi sent them away.”114 The testimony of another witness is quite similar: “… I noticed shouting, Misi was shouting something and the gypsies had already walked along Petőfi street.”115 The Austrian citizen, who was interrogated as a hearsay witness, although he cannot speak Hungarian very well, understood that the women begged him to take them home. He also saw that they were nervous and they were crying.
It was only Mihály L.’s mother who recalled the story in a different way: “Then Misi told Ibolya B. and her company in a normal manner that you should not eat here. Then Ibolya B. answered Misi in a rude, stolid manner that it is not your business whether we eat here, or not. After this, Misi, from the pump of the “95” petrol, started to go towards Ibolya B. and her company, who jumped away from the table and suddenly ran away, they left all their belongings there, even the bicycles.”116 The witness did not explain why someone is not allowed to eat at a place where benches and tables are placed, especially because she also told the police that other customers usually eat there too.
Mihály L. pleaded not guilty all through the procedure, including the investigation and the trial phase as well. He remembered the events as follows: “While I was filling the car tank, the gypsies started to talk to me in a rude manner. (…) They tried to piss me off, they made offensive remarks. They tried to make me nervous, said things, but I do not remember what they said. I asked them why they do this. I did not kick the food off the table either. I sent them away, saying that they do not have to eat at the petrol station and throw away all the litter.”117 He could not answer the judge’s question why the women ran away leaving their personal belongings on the spot.
In its judgement of 24 October 2006, the court found Mihály L. guilty of single count felony of aggravated battery and single count118 crime of vandalism, therefore the court sentenced him to a cumulated punishment of 400 daily items of fine119. The court set 250.- HUF as the amount of one daily item, thus the defendant has to pay
(3) If the battery is committed for a base reason or purpose, and if committed against a person defenceless or unable to express his will, the punishment shall be for a felony imprisonment of up to three years for simple battery, and imprisonment of one to five years in case of aggravated battery. (4) A perpetrator commits a felony offence and shall be punishable with imprisonment between one to five years, if the battery causes permanent physical disability or a grave injury to health, or, if the aggravated battery is committed with express malice. (5) The punishment shall be imprisonment from two years to eight years, if the battery causes danger to life or death. (6) The person, who commits aggravated battery due to negligence, shall be punishable for crime with imprisonment of up to one year, labour in the public interest, or fine, in the case defined in subsection (4), with imprisonment of up to three years, in case of causing an injury posing danger to life, with imprisonment of up to five years. (7) The perpetrator of the crime defined in subsection (1) shall only be punishable upon private motion. 114 Abstract from the minutes of the witness interrogation of 14 October 2005. 115 Abstract from the minutes of the witness interrogation of 30 January 2006. 116 Abstract from the minutes of the witness interrogation of 10 October 2005. 117 Abstract from the minutes of the City Court of Nagyatád, dated 15 June 2006, page three. 118 Of course Mihály L.’s conduct against Péter B. also constituted vandalism, but in this case due to the more serious result, namely the injury healing over eight days, the vandalism “merges into” the aggravated battery. 119 Articles 51-52 of the Criminal Code: Art. 51 (1) When imposing a fine, the number of the daily items of the fine shall be established in view of the material gain achieved or contemplated by the act, as well as the amount corresponding to one day's item, in accordance with the financial situation and income and the everyday needs of the perpetrator.
62 altogether 100.000.- HUF. In case Mihály L. does not pay the fine imposed upon him, every one daily item will be substituted by one day of imprisonment.
On the other hand, the court also found Péter B. guilty of single count vandalism, because the quarrel and fight at night was suitable for inducing indignation or alarm in other people. Consequently, the court put the defendant – who had no previous criminal record – on probation for one year.120 The defendants and the public prosecutor also accepted the judgement, thus it became final.
(2) The minimum and the maximum amount of the fine shall equal to thirty days' and five hundred forty days' items, respectively. The amount of one day's item shall be no less than one hundred and no more than twenty thousand HUF. Art. 52 In case of non-payment, the fine shall be changed to imprisonment executable in a detention centre. The amount of one day's item shall be substituted by one day of imprisonment. In such cases the term of imprisonment may be less than two months. 120 Articles 72-73 of the Criminal Code: Art.72 (1) The court may suspend the inflicting of penalty for a period of probation for a crime or felony punishable by imprisonment of up to three years if there is substantial reason to believe that it will serve the purpose of rehabilitation. (2) (3) (4) A multiple recidivist may not be put on probation. (5) The duration of the period of probation may last from one year to three years; the duration shall be defined in years. (6) The person put on probation may be put under the supervision of a probation officer. If the person put on probation is a recidivist, he shall be put under the supervision of a probation officer. Art.73 (1) The period of probation may be extended once, by not more than one year, if the person put on probation violates the rules of conduct of supervision by probation officer. (2) The probation shall be revoked and punishment shall be inflicted if the person on probation grossly violates the rules of conduct of probation supervision, or if he is sentenced while on probation for a crime committed during or before the period of probation. (3) Apart from the case of subsection (2), the punishability of the perpetrator shall be terminated by the elapse of the period of probation.
63 OTHER CASES
64 Case of Sámuel R.
On 2nd May 2006 a warrant for payment was posted to Mr. Sámuel R. of Roma origin by the Health Insurance Office of Borsod-Abaúj-Zemplén county, in which he was obliged to pay an amount of HUF 1,605,895.- plus interest for health insurance services. From the reasoning it was revealed that this amount became payable in connection with the injury of Mr. János S. suffered on 29th December 2003as an insured person. Mr. János S. injured by Mr. Sámuel R. hitting him on the shoulder by fist, and this was ruled out by a final verdict of the court. The applicant turned to our Office after receiving the warrant for payment, for he found the amount claimed by the health insurance agency as unfounded and excessive for Mr. János S. suffered minor injuries only. A legal representative assigned by our Office submitted an action for review to the court against the warrant, asking the court to repel it. The court ordered examination by a forensic medical expert.
On 29th December 2003 there was an argument between Mr Sámuel R. and his colleague, Mr János S., based on which both of them filed a report with the suspicion of light assault121.
According to Mr. Sámuel R. on December 2003 he was heading for his post to provide accident emergency duty at his workplace at a railway station, where he had been working as a preparatory worker since 1971. He was going on the ordinary route towards his post, where 8-10 m beyond the traffic management office someone caught him at the hands and accused him by shouting, and using anti-Gypsy remarks that he punctured the wheel of his bicycle. The attacker, Mr. János S. called him „all kinds of goon”, then slapped him in the face, finally he shouted „you see, the Gypsy just hit me!”. While this man was shouting Mr Sámuel R. was already heading forward to his post, for he had to be there on 6.30 a.m., because he had to stand in fo his colleague on duty. In the procedure later Mr. Sámuel R. referred to it several times that Mr János S., who attacked him is a big, muscular man with „violent behaviour”, and he would never get into a fight with him, but not even with anyone else, for he is not of a „fighting, quarrelling nature”. 122
Eventually it was Mr. János S. who filed a report and a procedure was started against Mr. Sámuel R. at the City Court of M. There were two eye-witnesses in the case. One of them made the following statements at the court: „I saw Mr. János S. running towards Mr. Sámuel R., and calling him all kinds of Gypsy and other obscene words. Mr. János S. caught and hit the defendant. Mr. Sámuel R. raised his hand and parried the blow. Then Mr. S. ran to us and said „you’ve seen it, you’ve seen it, he hit me. But the whole thing did not happen like this.” 123 The witness was heard by the court a few times after this, and he consequently stuck to his opinion, still his testimony was disregarded in the decision. For these facts were not recorded in his testimony taken by the police. The witness, however, claimed that he told the same things to the police, but these were not recorded in the protocol. In order to resolve the discrepancies, the court heard the administrator of the case as well, who said that he records what the witnesses say, and he does not remember Mr. János H. telling that the defendant made a blow out of self-defence only. The confrontation between the parties was unsuccessful, so it was up to the court to decide which testimonies to take into consideration when bringing the verdict.
In its judgement brought on 7th November 2005, based on the comparison of testimonies and other evidences, the court found Mr. Sámuel R. guilty of committing light assault out of mean motivation, and imposed a fine. Both the defendant and the prosecutor acknowledged the judgment, so it became final. Mr. Sámuel R. was not represented by a lawyer during the procedure, and his friends talked him out about appealing, with that he may get a worse result in a second-instance procedure.
More than half a year after the conclusion of the case, on 2nd May 2006 Mr. Sámuel R. received a warrant for payment, in which the Health Insurance Office of Borsod-Abaúj-Zemplén County notifies him to pay an amount of HUF 1,605,895.- as health insurance service plus interest within 15 day, the latter amount being HUf 267,803.- until 28th April 2006, and which amount arisen in connection with the injuries of the insured Mr. János S. suffered on 29th December 2003. The reasoning describes that Mr János S. suffered the
121 As per Article 170 Section (1) of Act IV. of 1978. on the Criminal Code: If a person assaults the bodily integrity or health of an other person, if the injury or sickness heals within 8 days, the misdemenaor of light assault is committed, and may be sanctioned with imprisonment up to two years, public work or fine. 122 Excerpts from the findings of facts recorded by attorney dr. Zsuzsanna Kónya on 5th May 2006. 123 Excerpt from the protocol of the hearing held by City Court of M. on 17th November 2004.
65 injuries by the obligee (Mr. Sámuel R.) hitting him on the shoulder by fist. The obligee was found guilty by a court verdict, while the responsibility for damages is based on Article 339 of the Civil Code124.
According to the civil law, damage compensation may be required if a person acted in an illegal way, and an other person suffered damages in correlation with this. The term of ’other person’ may mean a natural person or – as it was the case for Mr Sámuel R. – a legal entity. Beyond this the so-called accountability is important, which means that the conduct of the person causing the damage was not in correspondence with what could be expected generally in the given situation. So damage compensation may only be stated by the court if all conditions set forth by Article 339 of the Civil Code (illegal action, accountability, correlation and damage occurred) are met. Consequently a person causing damage cannot be obliged to pay in connection with a situation where she/he was acting in justified self-defence, for the condition of accountability is not met in this case.
In the case of Mr. Sámuel R., the illegal action being the base of damage compensation did occur with him committing a crime, as it was ruled out by a final court verdict. The issue of accountability is also to be reviewed, which is also backed up the court’s decision, for there were no circumstances stated which could have backed up a situation of justified self-defence.
There was, however a forensic medical expert during the criminal procedure, who stated that the injuries of Mr. János S. suffered on 29th December 2003 (bruises of the right upper arm) had a healing time of maximum eight days. In case of Mr. János S there was a chronic arthritis of the right shoulder, and an arthritis of a muscle of the arm, as a result of which he may had had grievances and symptoms getting gradually more serious. In case of the right shoulder the grievances and mutations experienced since the incident of December 2003 are the consequences of an ill-treatment suffered in 1995, and can partly be traced back to natural diseases. Consequently the expert stated that “no material deterioration of the health status as a result of the ill- treatment may be presumed.” 125
From the above it may be concluded that the costs spent on the medical treatment of Mr. János S. are not in correlation with the ill-treatment, i.e. the illegal and accountable action, they are totally independent of it. This means that the deterioration of health condition of Mr. János S. would have occurred anyway, and Mr. Sámuel R. did not contribute to it. In the lack of correlation between the illegal action and the damage occurred, no damage payment may be reimbursed on Mr. Sámuel R.
We have turned to the court against the warrant for payment issued by the health insurance office, and requested to annul the decision, based on the above-mentioned reasons. 126 Due to the plea of the obligee the warrant for payment turned into a civil court procedure. Only one hearing has been held so far, where a forensic medical expert was appointed upon the motion of the plaintiff’s representative in order to decide what treatment is reasonable and acceptable in case of an injury having a healing time of maximum eight days. The applicant is represented by attorney dr. Zsuzsanna Kónya.
124 Article 339 of the Civil Code contains the following: „Who causes damage to an other person by illegal action is to compensate this damage. The person will be exempt from this liability provided it is proven that the person had a conduct that can be expected in the given situation. 125 Excerpt from the opinion of the forensic medical expert. 126 Article 319 Section (1) of the Civil Procedure Code: It is possible to submit a written plea against the warrant for payment within fifteen days from its receipt at the court issuing the warrant. If the plea is against only a part or only one stipulation of the warrant, the part of the warrant not affected by the plea shall become final.
66 STATISTICS
67 STATISTICS
The NEKI received 53 complaints via phone and 71 complaint letters in 2006. Out of the overall 124 cases the Office initiated legal procedures before civil courts and other authorities in 13 more serious ones. In the other cases the clients received free legal advice, sometimes we helped them writing a petition or request, and wrote letters to the competent authorities.
The breakdown of cases in which the Office initiated legal procedure in 2006 (types of the cases)
EMPLOYMENT 2 HOUSING 1 EDUCATION AND TRAINING 2 GOODS AND SERVICES 2 CRIMINAL AND PETTY OFFENCE PROCEDURES 2 CRIMINAL PROCEDURES – REPRESENTATION OF VICTIMS 3 JUDICIAL SYSTEM 2 OTHER 1 TOTAL: 13
The breakdown of cases in which the Office initiated legal procedure in 2006 (by „type” of the perpetrators)
LEGAL ENTITIES 4 LOCAL GOVERNMENTS 1 JUDICIAL ORGANS 6 EDUCATIONAL INSTITUTIONS 2 TOTAL: 13
The status of the above-mentioned procedures on 31 December 2006
JUDICIAL PHASE: 4 BEFORE OTHER AUTHORITY OR ORGAN: 2 PROCEDURES ENDED: 6 TOTAL: 13
The breakdown of cases in which the Office initiated legal procedure in 2006 (by county)
BUDAPEST: 4 BORSOD-ABAÚJ-ZEMPLÉN COUNTY 4 KOMÁROM-ESZTERGOM COUNTY 1 PEST COUNTY: 2 SZABOLCS-SZATMÁR-BEREG COUNTY: 1 ZALA COUNTY 1 TOTAL: 13
The number of cases in which the NEKI initiated judicial or other legal procedure between 1995-2006
Violations committed by local governments: 57 Violations committed by police officers or border guards: 54 Housing: 32 Employment: 28 Other cases: 23 Violent crimes against Roma: 23 Public services, catering: 18 Cases for compensation: 16
68 Health care: 14 Education: 14 Child protection: 7 Media: 4 Total: 290
Types of cases between 1995-2006
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Total Local 7 7 1 5 8 10 3 7 5 3 1 - 57 governments Police, border 8 7 2 5 3 8 6 3 4 3 3 2 54 guards, judicial system, Housing 5 3 2 2 3 6 2 4 2 - 2 1 32 Employment - - - 2 2 2 1 3 5 6 5 2 28 Other - - 2 3 4 6 - - 1 2 3 2 23 Violent crimes 6 2 3 4 3 1 1 - 1 - - 2 23 against Roma Public services 1 1 - 1 2 1 3 4 - 2 1 2 18 Cases for - 2 1 2 2 3 2 1 1 2 - - 16 compensation Health care 2 - - 1 - 1 1 4 2 2 1 - 14 Education 1 - - - 1 6 - - 3 1 - 2 14 Child 1 - - - - 1 1 1 3 - - - 7 protection Media 1 - - - - 1 1 - - 1 - - 4 TOTAL 32 22 11 25 28 46 21 27 27 22 16 13 290
69 ABOUT DISCRIMINATION
70 BRIEFLY ABOUT DISCRIMINATION
Discrimination means any kind of differentiation applied against certain group of people or certain members of these groups either intentionally or without purpose, where the rationale of the differentiation is an opinion about the minority and not a characteristic relevant in the given case.
A common feature of the affected minority (or protected) group is most frequently the race, ethnicity, nationality, citizenship, sex, sexual orientation, illness or social status.
Under discrimination we refer to those differentiations that have a negative effect. The measures aimed at eliminating the already existing differences (affirmative actions) or the policies based on these measures were previously called „positive discrimination” in Hungary. Recently the legally correct term for this concept is the „more favourable treatment”, which is to be used in the everyday language as well.
The approximation of the domestic legal system to the EU acquis was a precondition to Hungary’s accession to the EU. The Act CXXV of 2003 on equal treatment and the promotion of equal opportunities (hereafter: ETA), that came into force on 27 January 2004, was adopted in the framework of this process in line with the relevant EU Directives. The ETA defines the following types of discrimination:
Direct discrimination Direct discrimination shall be constituted by any action as a result of which a person or a group of persons based on real or assumed sex, racial affiliation, color of skin, nationality, ethnic affiliation, mother tongue, disability, religion, belief, health condition, marital status, sexual orientation, sexual identity, pregnancy, age, social origin, financial situation or other characteristic is treated less favourably than another person or group of person in a comparable situation.
Indirect discrimination An action not deemed as direct discrimination and ostensibly meeting the requirement of equal treatment shall be deemed as indirect discrimination if it puts persons or groups specified in the ETA (Article 8) in a significantly disproportionately disadvantageous situation compared to people or group in a comparable situation.
Harassment Harassment is a conduct violating human dignity that is related to the relevant person’s characteristic defined in ETA, with the purpose or effect of creating an intimidating, hostile, humiliating or offensive environment.
Segregation Segregation is a conduct that separates persons or group of persons from others on the basis of characteristics defined by the ETA without any ground that seems reasonable according to objective consideration.
Victimisation Victimisation is a conduct that causes infringement, is aimed at causing infringement, or threatening with infringement, against a person making a complaint or initiating procedures because of a breach of the principle of equal treatment, or against a person assisting in such a procedure, in relation to these acts.
71 OTHER APPROACHES TO DISCRIMINATION
Historical discrimination: this concept is mainly used in the technical literature of the USA. It refers to the special fact that despite the recently legally guaranteed equal opportunities of the minorities, these groups are still in a less favourable situation due to the previously adopted or made discriminatory laws and official or private measures that used to be lawful at the time they were made but as a result of which several disadvantages affecting the minority groups cumulated historically and the public opinion became prejudiced towards these groups.
Disparate impact: it refers to a situation when a legal rule, action or condition is ostensibly neutral, however, due to the historically cumulated disadvantages, their potential detrimental consequences affect the protected groups much more heavily, that means their effect worsens the situation of the given group, e.g. the members of the group can not find job or step forward in the hierarchical structure.
Disparate treatment: a kind of discrimination when private persons, legal entities or the Government treat minorities improperly without recognizing (or perhaps realizing) that. Since this kind of covert discrimination is difficult to prove, in the USA, the UK and the Netherlands statistical data can also be used to prove its occurrence. The judicial practice in the USA regards discriminatory intention on the side of the Respondent as proven if the Plaintiff can prove that he/she a) belongs to a protected group, b) applied for an advertisement (concerning housing or employment), c) his/her application has been rejected and d) afterwards the application of a person not belonging to any protected groups, who is not different from the other applicant concerning the characteristics or skills relevant in the given case, was accepted. The above-mentioned domestic rules that were adopted in line with the EU Directives regulate the burden of proof in a very similar way.
Intentional discrimination: when an ostensibly neutral rule of law is applied intentionally in a discriminatory way.
72 ABOUTTHEORGANIZATION
73 ABOUTTHEORGANIZATION
The Legal Defence Bureau for National and Ethnic Minorities (hereafter: NEKI or Office), operated by the Otherness Foundation, is a nonprofit legal entity protecting the rights of the national and ethnic minorities living in Hungary, striving to reduce prejudice and to create a society free from discrimination.
Starting date of operation: January 1994.
Legal status: The Otherness Foundation that operates NEKI is an independent nonprofit legal entity. The organization is independent from the state, from political parties or any other political organizations and from the other NGOs.
The Board: Honorary president: ANDRÁS BÍRÓ; Chair: SÁRA ÉLIÁS, Members:. IMRE FURMANN, FERENC MISZLIVETZ, BOLDIZSÁR NAGY, LÁSZLÓ MAJTÉNYI, BEA BODROGI, JÓZSEF KÁRPÁTI.
Supervisory board: JUDIT CZÖVEK, ZSÓFIA FERENCZHALMY, ILONA VARGA.
The colleagues of the Office: JÓZSEF KÁRPÁTI Director, ERIKA MUHI attorney, LÁSZLÓ BIHARY attorney; MÁRTON UDVARI legal officer; KLÁRA IVÁNYI official in charge of matters related to sociology; MÁRIA JAKAB head assistant; HAJNALKA KISS, BALOGHNÉ technical assistant, ANNA RÁKÓ FARKASNÉ financial assistant.
Activities: • legal defence in cases when person belonging to one of the Hungarian national or ethnic minorities has been the victim of unlawful action or discrimination because of being a member of the particular minority group; • education, topics: human rights, rights of minorities, prohibition of discrimination, promotion of tolerance; • research in the field of human rights and rights of minorities and the enforcement of the ban on discrimination; • recommendations and public statements to the decision makers and law enforcement agencies.
Basic principles of the Office concerning legal defence (individual cases)
• The Office provides legal assistance during the entire legal procedure irrespective of the length of the procedure. In case the domestic legal tools did not remedy our client we turn to international court. • We shall never assume cases where the infringment is not related to discrimination on the grounds of ethnic affiliation. We shall never provide legal aid in cases where the conflict arose within a family or between different Roma organizations. • If during the progress of the legal procedure it turns out that the given case is not one related to discrimination on the basis of ethnic affiliation but the case might bring about serious human rights concerns (or important procedural issues), the NEKI might go on with the case after the in- depth assessment of the case. • We only publish the name of our client (and any other data making the identification of the person possible) if the client expressly so wishes and doing so presumably will not be contrary to the interest of the person.
74 Working methods
• Fact finding: obtaining the necessary documents, interviewing the complainant and all those affected by the case, visit to the scene of the case, analysis of relevant law and cases, observation of media. • Legal procedures: representing the victim in criminal procedures, representing the clients in civil and administrative procedures. • Inclusion of experts: depending on the nature of the case we shall obtain expert opinion from a physician, psychologist, architect, teacher etc. if needed. • Solving conflicts („Mediation”): it does not belong to the key activities of the NEKI but in course of the fact-finding missions carried out on the spot of the conflict, while sharing the views of the parties with the „opponent”, tension might decrease in a spontaneous way. Furthermore, if necessary, we recommend our clients to contact one expert with whom the NEKI has a long-standing relationship or forward the case to the proper organ. If litigation does not seem to be expedient or the client expressly so wishes, we make a proposal for settlement to the party who has discriminated against our client. • Co-operation with the Parliamentary Commissioner for National and Ethnic Minorities (hereafter: Commissioner) and other legal defence NGOs.
75 ABOUTLEGALDEFENCE
76 ABOUT LEGAL DEFENCE
The NEKI has set itself the aim of protecting the rights of the national and ethnic minorities living in Hungary. We believe that this activity is important not only because one of the most credible indicators concerning the level of democracy and internal equilibrium of the state is the situation of the minorities, but also because after the political transition the Hungarian minorities had to face such problems that were partly hidden before and which the majority could not cope with either. The NEKI tries to contribute to the detached description and the feasible solution of the strained relation between the minorities and the majority which became more and more obvious during the past years by directing the discriminatory cases to the proper legal way after a thorough fact-finding, through which the victims can be remedied for their grievances and the shortcomings of legal system or legal practice can also be highlighted. It is many times difficult prove that an action was discriminatory. Those making the decisions easily refer to the „own mistakes” of those excluded by them. The police and other similar law enforcement agencies act under such rules or break the relevant rules in such a way that make people feel helpless or defenceless. We believe that minority groups would get into a hopeless situation under these conditions in lack of an NGO that is aware of their rights and special characteristics of those living in the country. In lieu of an NGO, that is aware of those conditions or characteristics that are the result of the discrimination committed in the past, and which, if committed again, would further increase the gap between the majority and the minority. If differences or conflicts become more serious it will have a detrimental affect not only on the minorities but on the majority as well. The NEKI was the first office in Hungary to provide free legal protection. The other legal defence offices established later that play a significant role in this field did not make NEKI’s operation unnecessary or needless. The need for this organization is clearly shown by the more and more intense and widespread discriminatory attitudes in the society and the special feature of the Office, namely that it provides strictly legal services. In the White Booklets published every year only some of the cases can be described and shared with the public, in reality the Office deals with a lot more cases. During the past twelve years we received more than one thousand complaints. The NEKI has not changed its objective or essential work method ever since it started its career. However, the strategy of handling the cases did change as we experienced that not only the actually occurred discrimination causes damage as the damage caused by the discriminatory action is aggravated by the procedural failure made by the authorities investigating into the case and also by the loopholes in the legal system. Therefore we interpret the facts of the case from the point of view of the Constitution and the international treaties ratified by Hungary. Our activities were also supplemented with summarizing the experiences of the past twelve years in studies and giving them to the decision makers to take into consideration. The philosophy of the NEKI, however, still remained: the protection of the minorities’ rights within the country serves everyone’s interest.
IMRE FURMANN Member of the Board
77 DONORS in 2006
Ministry of Interior
European Roma Rights Centre
European Union
Metropolitan Social Public Foundation
Private persons
National Civil Fund
Open Society Institute
Soros Foundation
Szerencsejáték Co.
78 79 NEKI Legal Defence Bureau for National and Ethnic Minorities Otherness (Másság) Foundation Address: 1447 Budapest, P.O. Box 510. Phone/fax: (06-1) 303-8973; (06-1) 314-4998 Website: www.neki.hu e-mail: [email protected] Tax number of the organization: 18051922-1-42 Bank account number: OTP Bank NyRt.: 11711034-20810629 OTP Bank Rt. Központi Deviza Fiók: 11763055-24746012
Preparation for printing: RÁCIÓ Kft. (www.racio.hu) Printing: Mondat Kft.
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