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.