COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION - Hungary
Wally Keeler
International Convention on the Elimination of all Forms of Racial
Discrimination
CERD/C/431/Add.1
17 May 2002
COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION
REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 9 OF THE CONVENTION
Seventeenth periodic reports of States parties due in 2002
Addendum
Hungary*
[28 January 2002]
CONTENTS
Paragraphs Page
I. GENERAL REMARKS
........................................................................ 1 -
10 2
II. ARTICLE 2 OF THE CONVENTION
................................................11 - 24 3
III. ARTICLE 3 OF THE CONVENTION
................................................25 - 33 5
IV. ARTICLE 4 OF THE CONVENTION
.................................................34 - 35 7
V. ARTICLE 5 OF THE CONVENTION
................................................36 - 73 8
VI. ARTICLE 6 OF THE CONVENTION
.................................................74 - 86 14
VII. ARTICLE 7 OF THE CONVENTION
................................................87 - 104 17
List of Annexes
............................................................................
.................................... 20
I. GENERAL REMARKS
1. Reference is made to the previous report (CERD/C/263/Add.6)
regarding the Constitution (paras. 1-5).
2. Reference is also made to the status of minorities (paras. 6-12)
elaborated in the previous report.
3. International treaties to which Hungary is a party do not
automatically constitute part of domestic law. International treaties need
to be transformed into domestic law either by promulgation or by being
published in the Official Gazette. In this regard, the Hungarian system can
be considered dualistic.
4. The International Convention on the Elimination of All Forms of
Racial Discrimination has been promulgated by a decree (Law Decree No. 8 of
1966). By the act of promulgation, the Convention became part of domestic
law.
5. By becoming party to international conventions, Hungary complies
with the requirements of the rule of law, which has led to the adaptation
into the legal system of the generally accepted principles and provisions
relating to international penal law, to criminal procedural law and to the
enforcement of punishment. The process of legal harmonization with
international obligations has resulted in comprehensive changes affecting
the legal system as a whole.
6. The process of legal harmonization covers the complete legal
system, including Hungary's internal legal regulations, which protect human
rights and fundamental freedoms, as well as each and every component of the
legal provisions ranging from the Constitution to implementing decrees.
7. Wide-ranging legal provisions have been adopted and put into
practice by the Republic of Hungary to regulate the activities of the
legislative, executive, judicial, prosecutorial and other institutions (such
as the ombudsman) responsible for eliminating discrimination prohibited by
the Convention. It is now generally accepted that in the legal system as a
whole, including the penitentiary system, the respect for, and the
observance of human rights must be guaranteed and safeguarded.
8. The Constitution of the Republic of Hungary declares that
national and ethnic minorities shall share in the power of the people: they
shall be constituent factors of the State. The Republic of Hungary shall
protect national and ethnic minorities, it shall ensure their collective
participation in public life, foster their culture, the use of their mother
tongue, school instruction conducted in their language, and the right to use
their name in their own language.
9. The laws of the Republic of Hungary guarantee the right for the
national and ethnic minorities within the territory of the country to
establish organs of self-government at local and national levels.
10. The Republic of Hungary guarantees human rights and fundamental
freedoms for everyone living in the territory of the country without
discrimination of any kind as to race, colour, gender, language, religion,
political or other opinion, national or social origin, wealth, birth, or any
other status. Any discrimination on these grounds is persecuted to the full
extent of the law.
II. ARTICLE 2 OF THE CONVENTION
11. The basic anti-discrimination measures and provisions of the
Hungarian legal system are to be found in the Constitution itself, while the
details and safeguards are elaborated in statutes fully in line with the
Constitution, some of them in the comprehensive codes of the various legal
branches. The National Assembly of the Republic of Hungary has not chosen
to adopt a comprehensive anti-discrimination law; however, according to
decision No. 45/2000 (XII.8) of the Constitutional Court of Hungary (AB)
this does not constitute an unconstitutional omission in terms of the
requirement to legislate. The Constitutional Court decided that "it is not
in itself contrary to the requirement of legal security if several laws
contain provisions pertaining to a certain issue, and these are not
regulated in a single, comprehensive law"; the separate provisions of
anti-discrimination laws do not in themselves establish unconstitutionality.
The former Parliamentary Commissioner for National and Ethnic Minority
Rights has suggested in his report of activities undertaken in 2000 a draft
law on the "Measures against racism and xenophobia and the safeguarding of
equal treatment". The report, however, does not consider this draft to be a
formal legislative motion under section 25 of Act No. LXXVII of 1993 on the
Parliamentary Commissioner for Civil Rights. According to the report, the
proposal is merely the result of academic research and might be one of the
possible forms of implementing EU Directive No. 2000/43/EC in the Hungarian
legal system.
12. The majority of motions lodged with the Constitutional Court
requesting ex post facto review of the constitutionality of statutes allege
violation of the prohibition of discrimination. The Constitutional Court
decides on a case-by-case basis whether the discrimination in question is
unconstitutional or not. According to the Constitutional Court, the
prohibition of discrimination applies not only to human and civil rights,
but the prohibition also encompasses the entire legal system if the
discrimination is contrary to the right to human dignity. In several of its
decisions the Constitutional Court qualified the discrimination under
consideration as affirmative action. Among these decisions, AB Decision No.
22/1997 (IV.25) requires special attention. The decision stated, in
connection with the financing of schools of national minorities, that where
these schools take on responsibilities of State schools, affirmative action
in favour of schools that receive less financial support from the State is
acceptable from the constitutional point of view. The schools of national
minorities share this position with denominational schools.
13. With Act XXXIV of 1999, Hungary has promulgated the Framework
Convention for the Protection of National Minorities, adopted by the Council
of Europe in Strasbourg on 1 February 1995. Article 4 of the Framework
Convention stipulates that any discrimination based on belonging to a
national minority shall be prohibited. The parties undertake to adopt,
where necessary, adequate measures in order to promote, in all areas of
economic, social,
political and cultural life, full and effective equality between persons
belonging to a national minority and those belonging to the majority. In
this respect, they take due account of the specific conditions of the
persons belonging to national minorities. The measures adopted shall not be
considered to be an act of discrimination.
14. With Act XL of 1999, Hungary has promulgated the European Charter
for Regional or Minority Languages, adopted in Strasbourg on 5 November
1992. According to article 7 (2) of the Charter the parties undertake to
eliminate, if they have not yet done so, any unjustified distinction,
exclusion, restriction or preference relating to the use of a regional or
minority language and intended to discourage or endanger the maintenance or
development of it. The adoption of special measures in favour of regional
or minority languages aimed at promoting equality between the users of these
languages and the rest of the population or which take due account of their
specific conditions is not considered to be an act of discrimination against
the users of more widely used languages. However, the Charter requires the
compliance of Hungary only with regard to six languages, while domestic law
(Act LXXVII of 1993 on the Rights of National and Ethnic Minorities) accepts
the equality of all 13 national and ethnic languages.
15. The documents used by the Hungarian authorities during an
investigation in a court trial or in a penitentiary institution cannot
indicate the national or ethnic origin or the racial or religious
affiliation of the defendant or convict. Such registration is prohibited by
law and even questions containing any reference to them are prohibited. At
the request of the Ombudsman, 47 cases were investigated by the prosecutor
in 1997 and in no single case could the investigation find any element of
discrimination, a conclusion that the Ombudsman also accepted. There were
altogether three persons who claimed to have suffered legal prejudice
because of their ethnic origin. In two of the three cases the supervising
prosecutors found abuses of public office, and in one case the defendant was
held in preliminary custody for as long as nine months because he was
charged with 32 counts of robbery and larceny, an indictment which required
a lengthy investigation, i.e. his prolonged detention was not attributable
to his ethnic origin.
Sentencing practice between 1995 and 2001
16. Within the powers defined by the Constitution and in compliance
with the laws governing its competence, the Supreme Court of Hungary
endeavours to ensure the unity of judicature and monitors the functioning of
the courts.
17. In the course of its work the Supreme Court has not encountered
decisions, measures or procedural acts violating substantive or procedural
rules and regulations that might give rise to a supposition that the
sentencing practice of the criminal courts violates the provisions of the
Convention.
18. As to the courts' dealing with the merits of the cases: no notice
has been received by any of the competent authorities of a violation of the
provisions of the Convention. Consequently it can safely be stated that the
sentencing practice of the Hungarian courts, in the light of articles 2 and
7 of the Convention, need not be changed.
19. One of the most pressing outstanding problems in Hungary is how to
find appropriate accommodation for foreign nationals who violate the law.
The shortcomings that characterize refugee shelters (overcrowding and lack
of educational, hygienic and sport facilities) exist also in police
detention facilities and penitentiary institutions, however to a lesser
extent. By European standards, Hungarian penitentiary institutions are
becoming increasingly crowded: they have a prison population that exceeds
standard capacity by 60 per cent. About half of the prisons are even more
overcrowded, and in one or two penitentiary institutions the number of
inmates is twice as high as the present average of 160 per cent. Detention
cells in police stations are not yet that crowded, although there is also a
shortage of capacity because a few dozen police detention cells have been
closed down as they were found by the Parliamentary Commissioner for Civil
Rights to be unsuitable for detaining human beings.
20. Owing to increasing migratory trends, community shelters managed
by the border guards have become so crowded that in many cases they have
become unacceptable. Overcrowded facilities have made it very difficult for
the authorities to comply with regulations that require the separation of
foreign nationals from Hungarians. It is also difficult for migrants to
deposit or wash their personal belongings. There have been frequent
complaints about the lack of appropriate separation - i.e. lack of privacy -
as well as untidy sanitary conditions.
21. When on his visits of inspection the supervising prosecutor finds
shortcomings that contradict the principle of humane treatment, he issues an
appeal to the director of the community shelter to eliminate the problems or
take steps to close down the community shelter; this is the most he is able
to do, given his limited powers of action. Until 2001 prosecutor's offices
have not been granted legal supervisory powers over community shelters;
however, the recently adopted amendment to Act V of 1972 (Act XXXI of 2001)
may create such powers in the future.
22. It must be emphasized that the authorities have not found any
single case in which persons housed in community shelters have been
discriminated against or treated in a manner prohibited by law.
23. Recently, Hungary has witnessed a lull in migration waves. Border
checkpoints and the border registration system have been modernized and most
of the community centres have been refurbished; the conditions for housing
foreign nationals have therefore considerably improved.
24. Hungary's improving legal regulations and their practical
implementation are on the whole compatible with international standards and
satisfy the criteria of the rule of law.
III. ARTICLE 3 OF THE CONVENTION
25. In 1996 several provisions of the Criminal Code were amended by
the National Assembly in order to implement the prohibition of racial
discrimination and to create the necessary legal environment for more
effective measures against those who violate the prohibition.
26. Act XVII of 1996 introduced new legal facts of crime into the
Criminal Code and also amended some of its sections. Penal consequences are
codified in section 155 of the Criminal Code for genocide and in section 157
for apartheid, whereas section 174/B sanctions violence against a member of
a national, ethnic, racial or religious group.
27. Between 1995 and 2000 the following amendments were enacted in the
Hungarian Criminal Code (henceforth: Btk.) with a view to harmonizing it
with the Convention.
28. Act XVII of 1996, which entered into force on 15 June 1996,
amended the legal provisions regulating genocide (sect. 155), apartheid
(sect. 157) and incitement against a community (sect. 269). It annulled the
provision on crime committed against a national, ethnic or religious group
(sect. 156) and enacted the provision regulating violence used against
members of a national, ethnic or religious group (sect. 174/B).
29. As regards section 155 of Btk., through the incorporation of
subparagraph (b) ("causes serious bodily or mental injury to the members of
the group on account of their belonging to the group") the legislature
extended the scope of conduct regulated under this provision. Concerning
subparagraph (a), killing only one member of a group shall no longer
constitute genocide, and the term "folk" group was replaced by "ethnic"
group.
30. Section 155 of Btk., in force since 15 June 1996, stipulates the
following:
"Section 155
"(1) Anyone who - with the aim of total or partial extermination of a
national, ethnic, racial or religious group -
"(a) kills members of the group,
"(b) causes serious bodily or mental harm to members of the group on
account of their belonging to the group,
"(c) inflicts on the group conditions of life which threaten the
physical destruction of the group or certain members thereof,
"(d) imposes a measure aimed at preventing births within the group,
"(e) transfers children that belong to the group to another group
"commits a crime and shall be punished with imprisonment lasting from 10 to
15 years or life imprisonment.
"(2) Anyone who attempts to commit genocide shall be punished with
imprisonment for two to eight years."
31. Former section 156 of Btk. on crimes against a national, ethnic,
racial or religious group was annulled and at present the offence is
regulated under section 174/B.
32. The name of the offence governed by section 157 was changed from
"racial discrimination" to "apartheid" and the provision was significantly
enlarged: it ceased to be subsidiary in nature and in place of the former
phrasing ("act prohibited under international law"), the new provision
specifies the conduct constituting the offence, provides full regulation and
determines the specific limits, and also provides for a significantly longer
term of imprisonment than formerly allowed for "racial discrimination" -
from one to five years' imprisonment.
33. Section 157 of Btk., in force since 15 June 1996, provides as
follows:
"(1) Anyone who - with the aim of obtaining and maintaining domination
by one racial group of people over another racial group of people and/or
with the aim of the regular oppression of the other racial group -
"(a) kills members of a racial group or groups,
"(b) inflicts on a racial group or groups conditions of life which
threaten the total or partial physical annihilation of the group
"commits a crime and shall be punished with imprisonment lasting from 10 to
15 years or life imprisonment.
"(2) The person who commits a crime of apartheid shall be punished with
imprisonment lasting from 5 to 10 years.
"(3) Punishment shall be imprisonment from 10 to 15 years or life
imprisonment if the criminal act of apartheid described in subsection (2)
has resulted in serious consequences.
"(4) For the purposes of subparagraphs (2) and (3), a crime of
apartheid shall mean the crime of apartheid defined in paragraphs (a)/(ii),
(a)/(iii), (c), (d), (e) and (f) of article II of the International
Convention on the Suppression and Punishment of the Crime of Apartheid,
adopted on 30 November 1973 by the General Assembly of the United Nations in
New York, promulgated by Law Decree No. 27 of 1976."
IV. ARTICLE 4 OF THE CONVENTION
34. As a result of legislative changes, "violence against a member of
a national, ethnic, racial or religious group" became a new offence under
section 174/B, which provides:
"(1) Anyone who ill-treats someone because he/she belongs or is
believed to belong to a national, ethnic, racial or religious group, or
coerces him/her with violence or threat to do or not to do or endure
something, commits a felony and shall be punished with imprisonment of up to
five years.
"(2) The punishment shall be imprisonment from two to eight years if
the criminal act is committed
"(a) by force of arms [i.e. with firearms or explosives];
"(b) in an armed manner [i.e. with any other weapon];
"(c) causing considerable injury of interest [i.e. personal prejudice,
excluding physical injury];
"(d) with the torture of the injured party;
"(e) in a group [of at least three];
"(f) in a criminal conspiracy [i.e. two or more persons acting in an
organized manner]."
35. Amended section 269 of Btk. contained the phrase "commits an act
leading to the incitement of hatred", but by decision No. 12/1999 (V.21) AB
the Hungarian Constitutional Court annulled this part of the text of the
amended provision, finding that such threatening with the sanctions of
criminal law amounted to disproportionate and unnecessary restriction of the
right to freedom of opinion.
V. ARTICLE 5 OF THE CONVENTION
36. Act CX of 1999 amending Act III of 1952 on the Code of Civil
Procedure (henceforth: Pp.) re-enacted the fundamental principles of civil
procedure. The right to the use of the mother tongue is of particular
importance among the principles.
37. Section 6 of Pp. reinforces the formerly declared principle that
no one shall be at a disadvantage because of his/her lack of knowledge of
Hungarian. It sets forth as a new element that in proceedings before courts
and legal authorities, to the extent specified under international
agreements, everyone shall have the right freely to use his/her mother
tongue, or regional or minority language. To give effect to this principle,
courts shall supply interpreters.
38. Newly enacted subsection (4) of section 8 of Pp. provides that the
costs of the interpreter shall be advanced and borne by the State. These
amendments aim to harmonize Hungarian laws with the European Charter of
Regional and Minority Languages promulgated in Hungary by Act No. 40 of
1999.
39. Among the most important legislative changes is the amendment of
the Law on Minor Offences, which was redrafted in 1999. The new act retains
the section "Discrimination against an employee" and perpetrators of the
offence are now liable to a penalty of Ft 100,000. The offence was
introduced into the Law on Minor Offences by Government Decree No. 38/1997
(III.5). Section 93 of Act No. LXIX of 1999 on the Law on Minor Offences
now deals with discrimination against an employee and states that the
employer who "unlawfully denies employment to a person in connection with
his/her sex, age, nationality, race, descent, religion, political
conviction, membership in a trade union or his/her activities in this
connection, or because of any other circumstances not in connection with the
employment", shall be liable to a fine of up to Ft 100,000. According to
the Act, the procedure under this section falls within the competence of the
Office of Labour Safety and the Labour Inspector.
40. The legislators also decided that those who violate section 263 of
the Criminal Code on misuse of firearms or ammunition, section 263/B on arms
smuggling or section 264/C on misuse of weapons prohibited by international
conventions - and in so doing target a national, ethnic, racial or religious
group or a member of such a group - commit an aggravated crime punishable on
the same terms as a repeated offence.
41. Act XVI of 2001 on the amendment of the Labour Code and other
related acts for purposes of harmonization was adopted by the National
Assembly on 17 April 2001 and entered into force on 1 July 2001. The
amendment reworded the regulations in section 5 concerning the prohibition
of discrimination and the obligation of priority. According to the amended
Act, in connection with employment, employees shall not be discriminated
against on grounds of sex, age, marital or family status, handicap,
nationality, race, ethnic origin, religion, political affiliation or
membership in workers' representative organizations or activities connected
therewith, or on the basis of any other circumstances not related to
employment.
42. The new element of the definition is the prohibition of
discrimination amongst employees on the grounds of family status and
handicap. The amendment of the Labour Code, a unique attempt in the
Hungarian legal system so far, aims to define indirect discrimination. For
the purpose of the Act indirect discrimination shall exist where - on the
basis of characteristics defined in subsection (1) - an employment-related
provision, criterion, condition or practice that is apparently neutral or
that affords the same rights to all disadvantages a substantially higher
proportion of the members of a particular group of employees, unless that
provision, criterion, condition or practice is appropriate and necessary and
can be justified by objective factors. As an especially significant step
forward, under the provisions of the amended Act any provision, criterion,
condition or practice that is in connection with the procedure prior to the
employment shall also be deemed employment-related. Employers shall provide
the opportunity to employees for advancement and promotion without
discrimination, solely on the basis of professional skills, experience and
performance, and of circumstances deemed substantive with regard to the
position in question. In the event of any dispute in connection with the
employer's actions, the employer shall be required to attest that this
action did not violate the provisions on the prohibition of discrimination.
Any consequences of discrimination shall be properly remedied. The legal
remedy afforded to an employee who has been discriminated against shall not
result in any violation of or harm to the rights of another worker.
43. Section 5 (6) of the amended Labour Code contains the principle of
affirmative action, guaranteeing actual social equality. It stipulates that
in respect of a specific group of employees, employment-related regulations
may stipulate the obligation of priority under identical conditions in
connection with employment.
44. Section 3 of Act I of 1996 on Radio and Television Broadcasting
stipulates that the broadcaster shall respect the constitutional order of
the Republic of Hungary; its activity may not violate human rights and may
not incite hatred against individuals, sexes, peoples, nations, national,
ethnic, linguistic and other minorities, and Church or religious groups.
Broadcasting may not aim, openly or tacitly, at insulting or excluding any
minority or majority, or at presenting them or discriminating against them
on the basis of racial considerations.
45. According to section 26 of the same Act, "it is the obligation of
public service broadcasters to foster the culture and mother tongue of the
national and ethnic minorities living in Hungary, and to provide information
in their mother tongues on a regular basis".
46. The implementation of the Convention in Hungary is facilitated by
the legal guarantees incorporated in the criminal justice system, both in
principles and in practice. Act I of 1973 on the Code on Criminal Procedure
sets forth provisions according to which no one shall suffer any legal
prejudice because of his lack of knowledge of the Hungarian language; the
right to the use of the mother tongue, both verbally and in writing, is
guaranteed. The Hungarian authorities are required by law to appoint a
defence counsel for defendants who do not speak Hungarian, and the appointed
defence counsel will be responsible for safeguarding the defendant's
constitutional right to defence.
47. The changes and amendments to the Hungarian Criminal Code and in
the Code on Criminal Procedure have necessitated the modernization of
certain provisions of the Rules on the Enforcement of Punishment (Law Decree
No. 11 of 1997) even before the Rules on the Administration of Punishment
and Penitentiary Measures can be comprehensively overhauled. Act XXXII of
1993 amending the Rules on the Enforcement of Punishment (henceforth:
Bv.tvr.) - to a great extent with a new approach - already took into account
the recommendations of the Council of Europe's Committee of Ministers on the
rules and regulations concerning the implementation of punishment. It also
took into consideration the relevant United Nations rules and the
international conventions promoting the prohibition of discrimination.
48. A new component of legal guarantee was introduced by the above
Act, which defined the legal status of convicts in accordance with
international practice and criteria. According to paragraph (3) of section
2 of the Rules on the Enforcement of Punishment, no convict can be subject
to discrimination on the grounds of his national or ethnic origin, religion,
political conviction, social group, gender or wealth.
49. During the reporting period, convicts have been provided with
broader rights to legal remedy: there is a more general access to legal
remedies through judicial channels and the judiciary has also been granted
extensive powers to address questions relating to the special legal
conditions of the penitentiary system.
50. It has become a generally accepted principle that the penitentiary
system and all related activities must be conducted with full respect for
fundamental human rights; the administration of punishment must be limited
to the deprivation of liberty without any related coercion or suffering.
51. The new regulation also facilitates foreign convicts exercising
their rights in the course of criminal proceedings and during the
implementation of punishment in the Hungarian penitentiary system.
According to the Rules on the Enforcement of Punishment, foreign convicts
have the right to receive information in their own language, or in any other
language known to them, on the relevant legal provisions stipulating their
rights and obligations. Foreign convicts must not suffer any legal
disadvantage because of their lack of knowledge of the Hungarian language.
Convicts also have the right to use their mother tongue while serving their
prison term.
52. In line with the modernization of the law decree concerning the
Rules on the Enforcement of Punishment, related implementing rules and
regulations have also been adopted.
53. Most of the ministerial decrees issued on the legal status of
convicts serving their sentence in various penitentiary institutions refer
to the requirement of lawful treatment and the prohibition of
discrimination.
54. Legal provisions regulating the enforcement of punishment for
non-Hungarian citizens stipulate that the penitentiary institution is
obliged by law to ensure that foreign inmates are allowed to receive
information in their own language or in any other language known to them
about the relevant legal provisions stipulating their rights and
obligations.
55. In receiving a non-Hungarian convict in a penitentiary
institution, the authorities must without any delay inform the diplomatic or
consular representatives competent in the case of the foreign national
concerned. He/she must be informed in a language known to him/her if
his/her prison term is transferable under international agreements. When
selecting his/her quarters care must be taken to make sure that his/her
fellow-inmates speak or know the language used by him/her.
56. All interpreting or translation expenses incurred with respect to
the rights and obligations of a foreign convict while serving a sentence in
a Hungarian penitentiary institution must be borne by the competent
Hungarian authority.
57. Subparagraph 6 (3) of Ministry of Justice Decree No. 5/1998 (6
March) on the health care of convicts includes provisions offering human
rights guarantees in cases when a convict is received with external signs of
injury, or the convict himself claims to have suffered such injury.
58. Act XXXIV of 1994 on the Police also states, in line with
international principles, the prohibition of torture, interrogation under
duress, and cruel, inhuman or degrading treatment; it provides for statutory
regulations that offer legal guarantees concerning the use of coercive
measures. According to these legal provisions, Hungarian police are
prohibited from using any such treatment and, should they receive orders
contrary to these provisions from their superior, they are obliged by law to
refuse the orders. Moreover, if they observe such conduct, they are
expected to prevent it by taking appropriate measures, to initiate legal
proceedings or to launch an investigation.
59. Paragraph 1 (2) and (3) of Ministry of Interior Decree No. 19/1995
(13 December) on Police Detention also contains human rights guarantees
which establish that persons held in custody in police detention cells must
be treated with full respect for human dignity. The police are prohibited
by law from subjecting such persons to torture or cruel, inhuman or
degrading treatment. Persons in custody cannot be used for medical
experiments or scientific examinations or tests even if the consent of the
persons is given.
60. When applying the regulations concerning police detention,
detainees cannot be discriminated against on the basis of race, colour, sex,
religion, political or other opinion, national or social affiliation,
descent, or social or any other position.
61. Coercive measures that members of the penitentiary system are
permitted to use are regulated on a statutory level by Act CVII of 1995 on
the Penitentiary System, thus satisfying the requirements of the rule of
law. The same Act also offers legal guarantees for ascertaining whether the
use of coercive measures was justifiable. In harmony with other statutes,
the Act provides that the person who is the subject of such coercive
measures has the right to lodge a complaint with the authorities competent
in that matter (police, prosecutor's office, court) or to use other forms of
legal remedy. In line with Act LXIII of 1993 on the Protection of Personal
Data and Accessibility of Public Data, the aforementioned Act also specifies
the types of convicts' data and related documents which the authorities are
permitted to register, and regulates issues such as the classification of
the use of such data, data protection and data provision, as well as
registration deadlines. Priority is given to systematic supervision to
prevent discrimination, torture and all other prohibited acts.
62. In 1989, with a special view to providing legal guarantees
required by the rule of law, the Republic of Hungary incorporated into the
provisions of the Constitution a new principle, according to which the legal
supervision and control of the penitentiary system is conducted by the
prosecutor's office. This principle was later consolidated by section 11 of
Act LIX of 1997 amending the Constitution of the Republic of Hungary.
63. The above measures are also in harmony with the recommendations of
the United Nations and the Council of Europe. The resolutions passed at the
eleventh session of the United Nations Commission on Crime Prevention and
Criminal Justice held in Vienna in 1990 called for prosecutors' offices to
play an increasingly active role in implementing judicial decisions, as well
as the supervision and control thereof to monitor any abuses of power and
severe violations of human rights.
64. The supervision and control of Hungary's punishment administration
system - a system which also extends to punishments other than the
deprivation of liberty - are appropriately regulated, whereas systematic
supervision and control conducted in the penitentiary institutions by the
supervisory prosecutors substantially contribute to the safeguarding of
human rights. Legal supervision and control of the system of the
administration of punishment are conducted on the basis of the following
powers and entitlements: regular supervision and control; the right to
immediate legal measures; the right to make motions to law enforcement
agencies, judicial authorities and administrative organs of the justice
system. Legal supervision and control by the prosecutors' offices are
designed to function under the above legal entitlements as a whole, and they
basically differ from those of the judicial system, of the ombudsman, and
from internal and international or social supervision and control.
65. Legal supervision and control are, as a matter of fact, conducted
by prosecutors' offices regularly, continuously and throughout the country's
territory. The role of supervisory
prosecutors in the Hungarian penitentiary system has undergone comprehensive
changes as a
result of recent legislative acts; specifically, higher expectations have
been formulated and more specific tasks have been assigned to them by a
number of new statutory laws and ministerial decrees.
66. In view of this new statutory environment, Hungarian prosecutors'
offices also perform the very important task of supervising and controlling
the lawful treatment of convicts. Supervisory prosecutors conduct regular
legal monitoring of confinement in each and every penitentiary institution.
They conduct hearings with the convicts and other persons there. If a
prison inmate has a complaint or a statement to make against a prison guard
or a law enforcement agent, the facts of his statement are recorded in a
protocol and appropriate measures are taken to remedy the legal prejudice
and to restore legality. At least twice a month the prison is revisited,
the treatment of the convicts and especially the use of coercive measures
are investigated from the point of view of legality, and the system of
rights and obligations is monitored. If, in the course of their
investigation, the supervisory prosecutors detect or observe any violation
of the law - for instance, they discover unlawful treatment - they take
measures without delay.
67. One of the most important guarantees that can safeguard the
legality of treatment of persons deprived of their liberty is the right to
equal treatment. The legality of treatment, in the strict sense of the
term, must incorporate the prohibition of all forms of discrimination
against the convicts, the use of an acceptable tone with the convicts and
full respect for their human dignity and self-esteem.
68. The above guarantees will not function unless directors of
penitentiary institutions take a consistent and determined stand on the
rejection of all forms of ill-treatment, assault or unlawful behaviour
against convicts. One of the preconditions for the lawful treatment of
convicts is their obligation to comply fully with the rules and regulations
of the penitentiary system, i.e. convicts are not to receive benefits other
than those provided for in the penitentiary rules and there must be no
unlawful contacts and dealings between the guards and convicts.
69. In accordance with official circular No. 2/1995 issued by the
Chief Prosecutor's Office, the CPO has conducted a survey in each and every
year on the legality of treatment of convicts since 1995, following the
first visit of CPT of the Council of Europe to Hungary. Based on the
conclusions of the second (1999) visit of the Committee, a new circular was
issued with the specific aim of prevention, setting forth new obligations
for supervision, investigation and reporting. This creates an enhanced
guarantee designed to prevent and eliminate any ill-treatment by members of
the law enforcement agencies and the penitentiary institutions.
70. The conclusions of the nationwide investigations that prosecutors
have conducted since 1995 indicate that - except for a few isolated cases -
the treatment of convicts in general satisfies the expectations formulated
in international conventions and complies with the criteria set by the
relevant Hungarian legal provisions in force.
71. In one specific case, the relative of a defendant held in
preliminary custody in a penitentiary institution appealed to the
Parliamentary Commissioner for National and Ethnic Minority Rights claiming
that the person in custody had been subjected to discrimination and that the
authorities had applied unreasonably severe detention measures against him
in the penitentiary institution because of his Roma origin.
72. In one of the district police stations of Budapest a detention
facility guard received a verbal reprimand as a result of a disciplinary
action because he had addressed a Roma detainee in derogatory terms in
connection with his ethnic origin.
73. In another penitentiary institution a group of convicts complained
that they had been called Gypsies in derisive terms, but they failed to name
the accused guards of the penitentiary institution. Another convict in the
same prison complained that his request for kosher food had been turned down
and his right to observe the dietary laws of his religion violated.
VI. Article 6 of the Convention
74. As to the Code on Criminal Procedure (henceforth: Be.) the
previous report gave details about the fundamental principles governing
criminal proceedings (ex officio procedure, right to the use of the mother
tongue, right to legal remedies) which have not changed since the submission
of that report. In connection with the right to legal remedies, however,
reference must be made to section 57 of the Constitution, as amended,
subsection 5 of which provides that with effect from 30 July 1997, "In the
Republic of Hungary, everyone shall have the right to seek legal remedy
against a decision of a court, public administration or other authority,
which has infringed his/her rights or lawful interests. In the interest of
adjudicating legal disputes within a reasonable length of time,
proportionately, the right to legal remedies shall not be restricted unless
by an Act passed by the vote of two thirds of the attending members of
Parliament." Thus, as a result of the amendment the right to legal remedies
became a constitutional right.
75. As to the system of legal remedies ensured under Be. - appeal,
revision, reopening of the case - no conceptual changes have been effected
since the submission of the previous report. However, as a result of
amendments, with effect from 1 March 2000 new reasons were added as bases
for the reopening of a case, which may affect article 14 of the Convention
insofar as Hungary has made the statement mentioned under this article.
According to section 276, subsections (5) and (6):
"(a) a final judgement passed by international
human rights organs in
proceedings instituted upon the complaint of a person under Hungarian
jurisdiction, if these organs find that an international legal obligation
has been breached through the violation of law, provided that the Hungarian
State has undertaken to abide by the final judgement of that international
human rights organ in international treaty,
"(b) a unity of law resolution passed by the
Supreme Court
shall be regarded as new evidence falling within the meaning of
section 276, subsection (1), point (a)."
76. The previous report indicated that as a result of a Constitutional
Court decision the institution of "protest on legal ground" had ceased to
function as a legal remedy with effect from 31 December 1992. Subsequent
legal practice, however, demonstrated that serious breaches of law
occasionally occurred which could not be remedied within the system of
remedies of the Be. as in force at that time. Therefore, with effect from 1
March 2000 Act CX of 1999 introduced a new legal remedy into Be. called
"remedy in the interest of legality". Section 291/B provides:
"A remedy in the interest of legality against a
final court decision shall lie with the defendant if:
"(a) the guilt of the defendant has been
established by violating the rules of substantive criminal law, or
"(b) the final court decision violates the
prohibition of the aggravation of
punishment [section 234, subsection (1); section 241, section 354;
subsection (3)], provided that no other remedy is available against the
final decision."
77. The Chief Prosecutor shall submit remedy in the interest of
legality. Be. defines the scope of persons entitled to initiate proceedings
and specifies those who are to be informed by the court and details the
rules of procedure.
78. Ministry of Justice Decree No. 6/1996 (12 July) on the Rules and
Regulations concerning Imprisonment and Preliminary Custody stipulates that
victims' rights may be defended either in person, by a legal counsel, by a
statutory agent or by proxy. The Decree also provides a full description of
the legal provisions which offer guarantees for convicts to seek legal
remedies. In addition to the standard legal remedies already available,
inmates can also directly refer their case to the prosecutor who is
authorized to exercise legal supervision and control over the penitentiary
institution; they can request a hearing by the prosecutor; if they claim
that their fundamental freedoms, which they are entitled to enjoy while
serving a prison sentence, are being violated they can appeal to the
Parliamentary Commissioner (Ombudsman) for Civil Rights, as well as to the
Parliamentary Commissioner for National and Ethnic Minority Rights; in case
of a legal prejudice pertaining to the handling of their personal data or
their right to have access to public data, they may also refer their cases
to the Parliamentary Commissioner for Data Protection and Freedom of
Information.
79. The right of convicts to appeal to international forums specified
under separate legal provisions is also provided for by the law.
The work of the Parliamentary Commissioner for National and Ethnic Minority
Rights
80. When examining the prohibition of discrimination it is worth
highlighting the activities of the Parliamentary Commissioner for National
and Ethnic Minority Rights. The Ombudsman dealing with the rights of
minorities, who is independent and responsible to the National Assembly, is
a feature of Hungary. One of the main tasks of the Commissioner is to
uncover and, when possible, to remedy ethnic discrimination. The
Commissioner has so far stated in all his reports that the State, local
governments and its institutions do not knowingly follow a discriminatory
policy. He was of the opinion, however, that discrimination is part of
everyday life, causing an especially grave problem for the Roma community,
its groups and members (60 per cent of the complaints filed in 2000
originated from Roma petitioners).
Two proceedings conducted by the Parliamentary Commissioner for National and
Ethnic Minority Rights
81. Hungarian Television Channel M1 broadcast a report about moving
Roma families from Zámoly to Csór. The reporter made the following
statements in the report: "Since the Roma from Zámoly have moved to the
village, the number of burglaries has risen significantly according to local
people . Villagers were taken aback by the fact that Roma had flooded the
village. The last straw was when six houses were broken into yesterday and
the day before yesterday in the village." The mayor of the village stated
afterwards that the Roma "have no place in this country".
82. The Commissioner initiated the proceedings of the Complaint
Committee of the National Board of Radio and Television (hereinafter
referred to as ORTT). As a result of the proceedings the Board concluded
that Hungarian Television had violated in the contested broadcast of Hét
(The Week) provisions contained in section 3 (2) and (3) of Act I of 1996 on
Television and Radio, broadcasting programmes that contained allegations
liable to incite hatred against an ethnic minority group. According to
information given by the public prosecutor's office to the Commissioner,
there was not even a hint of suspicion about any of the Roma who moved to
Csór committing acts of burglary. Those making such statements committed
slander and defamation as well, although the offended parties did not file
the private complaint necessary for initiating criminal proceedings.
83. In another case a complaint was filed with the Parliamentary
Commissioner for National and Ethnic Minority Rights concerning an article
published in Kobányai Hírlap which stated, "The elder of the Roma attackers
pulled the man with the case from his seat and pushed him against the nearby
door, while hitting him several times in the stomach. The younger took out
a knife .". The Commissioner drew the attention of the competent local
government to the fact that in reports of this kind it is not necessary to
indicate the ethnic origin of the persons involved. The representatives of
the local government held a meeting afterwards to review the case and in the
name of that body the mayor has promised to avoid further libels.
The question of a comprehensive anti-discrimination law
84. The Office of the Parliamentary Commissioner for National and
Ethnic Minority Rights has prepared a draft law on the elimination of racism
and xenophobia and on the safeguarding of equal treatment. The future act
would encompass all proceedings, actions, measures (negligence) and
treatment by the State authorities, local governments, and social and
economic organizations concerning all natural persons, and groups definable
by race, colour, or national or ethnic origin who are in the territory of
the Republic of Hungary.
85. The draft deals prominently with discrimination exercised by the
executive branch and the public services. The document contains the right
to equal treatment, and also defines direct and indirect discrimination and
segregation. It cites specific areas of ethnic discrimination and provides
remedies for victims. The specific areas cited in the draft act are
discrimination in employment, education, the social sphere, health care,
public administration and the public service.
The Committee on Anti-discrimination
86. The Committee on Anti-discrimination has been established upon the
initiative of the Minister of Justice. It consists of the representatives
of several ministries, as well as of the Office of the National and Ethnic
Minorities, the Office of the Parliamentary Commissioner for Civil Rights
and the Human Rights Committee of the National Assembly. The Committee
started its work in the first half of 2001. The various ministries detailed
the provisions countering discrimination in their respective fields of
competence. As a second phase of the work, experts invited by the Committee
prepared working papers on the necessity of enacting a comprehensive law on
discrimination. The working papers have already been submitted and their
evaluation is now under way.
VII. Article 7 of the Convention
87. According to the decision on 16 March 2001 of the National Board
of Radio and Television (ORTT), the winner of a tender for 88.8 Mhz, a
non-profit frequency band, is Radio C, a Roma radio.
88. The Hungarian Constitution ensures for everyone the rights to
education and culture; therefore, these rights are secured for persons
detained in penitentiary institutions as well.
89. The fundamental principles of education and training are specified
under Act LXVIII of 1999 on Public Education and Act LXXVI of 1993 on
Vocational Training.
90. The educational and training programmes organized within the
penitentiary institutions aim to reduce the cultural and educational
differences between the inmates and to increase the level of their
qualification with a view to improving their position in the labour market
when released and bettering their chances of reintegration into society.
91. Training programmes are adjusted to the specific forms of
penitentiary institutions (whether housing inmates in detention on remand or
inmates serving their sentences of imprisonment), the duration of the
detention and the health conditions of the inmate, including psychological
and other statuses as well.
92. Participation of the inmates in educational-vocational and
rehabilitative programmes is voluntary. Section 2, subsection (3), of
Decree No. 11 of 1979 on the execution of sentences and measures
(henceforth: Bv. tvr.) provides that no one shall be discriminated against
on the grounds of sex or national, racial or social origin when forming
groups within the penitentiary institutions. Accordingly, no instances of
discrimination have been reported from the institutions.
93. Penitentiary institutions do not register inmates as belonging to
a minority group; they do, however, keep contact with several organizations
in the interest of making known and maintaining minority, especially Romani,
cultural values (e.g. penitentiary institutions keep contact with the local
Romani organizations; the National Headquarters of Law Enforcement in
Penitentiary Institutions cooperates with the Romano Kher Gipsy House of the
municipality of Budapest).
94. Romani culture and folk crafts are popularized by programmes
organized within the framework of Romani and community colleges in several
of the penitentiary institutions (e.g. in Sátoraljaújhely, Baracska, and in
the institutions of Jász-Nagykun-Szolnok and Fejér Counties).
95. These courses can be attended by any interested inmate.
96. The training project "Integrated farm-bailiff I-II-III" - financed
by PHARE 99 - was launched on 19 June 2001 in the National Penitentiary
Institution of Nagyfa with the participation of 60 inmates, a number of them
belonging to the Roma minority.
97. The following forms of education and training are available in the
penitentiary institutions:
(a) Education within the school system: primary school;
secondary school; vocational secondary school; school training skilled
workers;
(b) Education outside the school system: offered by the
labour market; in community colleges;
(c) Forms of self-education: as private pupils; special
remedial classes;
(d) Hobby groups and training.
98. Education and vocational training are organized within the
framework of adult education, primarily in evening and correspondence
courses.
99. In the penitentiary institutions many inmates attend the
elementary education courses which thus play an important role in
eliminating illiteracy or functional illiteracy among juveniles, young
adults and adults. Since a number of the inmates enrolling in the upper
classes prove to be functionally illiterate, they are ensured an opportunity
to attend the lower classes simultaneously in order to recapitulate the body
of knowledge offered by those classes.
100. In penitentiary institutions housing primarily inmates in detention
on remand (so-called "county-houses"), intensive training programmes lasting
from one to six months can be organized.
101. In recent years elementary school education has been organized in
four further institutions (Nagyfa, Márianosztra, Szeged, Vác). In many of
the other institutions so-called labour market training courses have been
launched, financed either from budgetary or voluntary sources.
102. Therapeutic programmes (drug prevention, education for health) and
personality development programmes have also been launched in increasing
numbers in recent years. These programmes have been financed mostly by the
British Embassy and the Ministry of Economy.
103. Each institution maintains a library available to all the inmates.
In the period under review, the annual budget of the libraries has
significantly been increased. As a result, books, textbooks, encyclopaedias
and statute books are available in these libraries. Recently, interest in
language, handicraft and popular science books has significantly increased.
104. The field of law enforcement regulation and practice is likewise
governed by the endeavour to fully ensure the enforcement of the basic aims
and fundamental principles enshrined under the International Convention.
List of annexes
1. Government Resolution No. 1047/1999 (V.5) about medium-term
measures to improve
the living standards and social position of the Roma population
2. Measures taken by the State to promote the social integration of
Roma living in Hungary
(Budapest, 2000)
3. Summary of measures taken by the Government affecting the Roma
minority
in 1998-2000
4. Act XX of 1949 on the Constitution of the Republic of Hungary
5. Summary of Decision No. 45/2000 (XII.8) of the Constitutional
Court
6. Act IV of 1978 on the Criminal Code
7. Act I of 1996 on Radio and Television Broadcasting
8. Act XXII of 1992 on the Labour Code
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* This document contains the fourteenth, fifteenth, sixteenth and
seventeenth periodic reports of Hungary, due on 4 January 1996, 1998, 2000
and 2002 respectively, submitted in one document. For the eleventh, twelfth
and thirteenth periodic reports of Hungary, submitted in one document, and
the summary records of the meetings at which the Committee considered that
report, see documents CERD/C/263/Add.6 and CERD/C/SR.1143-1144.
The annexes to the report submitted by the Government of Hungary
may be consulted in the files of the secretariat.
GE.02-41987 (E) 180602