Office of the commissioner for fundamental rights of hungary

Projects in 2012

• Project on Children's Rights – Child-Friendly Justice

• Projects on the fundamental rights aspects of the penitentiary system and the rights of foreigners in alien policing and sanctuary detention, and on the rights of lawyers and their clients

• The "Dignity of Labour" Project

• Project on the 'Losers of the Crisis – in the Captivity of the Legal Regulations'

• Disaster Management Project

Project on Children's Rights – Child-Friendly Justice

A child could act in many procedural positions in the justice system: as a victim, defendant, (eye)witness, asylum-seeker, unaccompanied minor etc. Therefore, the justice system may not be blind to the fact that children have specific needs and rights. Child-friendly justice means a justice system (criminal, civil, administrative justice) where the rights and the best interests of the child can be guaranteed at the highest possible level; justice shall take into account the level of the child's maturity and awareness; moreover, it has to be accessible, age appropriate, speedy, diligent, adapted, and focused on the needs of the child. It is important to emphasize that these special rules shall be applied to everyone under 18, following the spirit of the UN Convention on the Right of the Child (CRC) which entered into force in Hungary in 1991.

In Hungary, hundreds of thousands of children come into some kind of contact with various authorities and/or official proceedings every year. The current legal regulation is adequate enough to ensure the rights of children who are in the focus of several international conventions (UN CRC, European Convention on Human Rights, revised European Social Charter) and Council of Europe instruments (Guidelines on Justice in matters involving Child Victims and Witnesses of Crime; Guidelines on Child-friendly Justice, European Rules for Juvenile Offenders), so it lays down the rules of representation, information and hearings, and it also ensures the right to freely express opinions. However, there is a wide gap between the written standards referred to above and the practice.

The Commissioner for Fundamental Rights as an Ombudsman for children, defends the rights of the child not only on the basis of the authorisation given by the Child Protection Act but, since 1 January 2012, also based on the new Ombudsman Act (Act CXI of 2011 on the Commissioner for Fundamental Rights) which prioritizes the defence of children's rights as the Ombudsman's main task. This means that the Commissioner has become stronger and more effective in fulfilling this responsibility.

Consequently, in his children's rights project in 2012 the Ombudsman focused, similarly to the Network of European Children's Rights Ombudsmen and to the Ministry of Public Administration and Justice, on certain questions of child-friendly justice, conducting comprehensive ex officio inquiries into the following:

·         enforcement of international obligations concerning child-friendly justice (e.g.: CoE Guidelines);

·         victim support mechanisms;

·         children's rights in the (criminal, civil and administrative) justice system;

·         mediation and other alternative conflict-management methods;

·         special skills of personnel working with children in the justice system;

·         situation of unaccompanied foreign minors;

·         juvenile penitentiary institutions (on-the-spot inquiries in youth detention-centres).

This project was carried out with the support of the Ministry of Public Administration and Justice and in close cooperation with UNICEF Hungary.

Projects on the fundamental rights aspects of the penitentiary system and the rights of foreigners in alien policing and sanctuary detention, and on the rights of lawyers and their clients

Human dignity and the rights to life and humane treatment of those limited in their freedom (persons in custody, convicted, detained under alien policing) have been in the centre of attention of every ombudsman ever since the establishment of this institution in Hungary, for one cannot dispute the actual and/or perceived exposedness of detainees. The rule of law and the democratic principles of law require that the implementation of the loss of freedom should be humane, educational and leading back to society, in other words, the convict should be given the chance of rehabilitation.

The penitentiary system is an important element of the social and political control mechanisms in the broad sense. Beside law enforcement, jurisdiction, civic education and the normative structures (values, ethics, model ways of life), the penitentiary system is also a strong sanctioning instrument. In a state governed by the rule of law, penalty should also serve behavioural correction as an instrument of education and re-socialization.

Law enforcement has its global aspects, as well. One can find more and more foreigners and migrants of various nationalities among perpetrators. The number of migration-related crimes is increasing, so is the number of detainees who do not speak the official language of the host country. At the same time, with the trends toward international, e.g. European standardization of penitentiary rules, the role of global and regional control norms and institutions in law enforcement is increasing (e.g. the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and its implementation/supervision mechanisms).

The phenomenon of the "crisis of crisis management" is manifesting itself in law enforcement, as well. Law enforcement is using the penalty of imprisonment more and more; however, since additional funding for law enforcement is scarce or non‑existent, the penitentiary system is chronically overcrowded, inhumane and degrading. What the over-burdened and under-paid personnel neglects is exactly the function of education and re-socialization. Therefore, an ever‑growing number of convicts may become repeat offenders or carriers of prison abuse; special treatment requirements vis‑à‑vis juvenile delinquents and those in custody pending trial are rarely if ever met. Crisis management institutions themselves may be over-burdened by the crisis to an extent when functional anomalies and troubles may arise.

Among the detainees, extremely exposed are those not speaking Hungarian and foreign children torn from their adult relatives, i.e. unaccompanied foreign minors who, due to their age, are not in the position to independently exercise their own rights. It is rightfully presumed that, due to their lack of knowledge of the Hungarian language and the local circumstances, especially while in detention, even foreign adults not speaking Hungarian would not be able to file a complaint to the Commissioner for Fundamental Rights if their rights or the rights of their under-aged children were infringed upon.

This project was closely intertwined with the project on the rights of lawyers and their clients. The new Fundamental Law does not contain any particular provision on the legal profession. The role of lawyers, the activities of legal and defence counsels are of major importance not only for the proper functioning of the justice system, ensuring the right to legal defence, but, in general, from the point of view of the protection of individual fundamental rights, as well. Access to legal representation and defence, operation of lawyers without fear and outside influence, equality of arms and ensuring contact are all very important requirements.

Just as in the case of previous inquiries, the rule of law and the requirement of legal certainty, the enforcement of the right to fair procedure, i.e. transparency, unimpeded operation and professional quality control by the bar, are of paramount importance from the point of view of practice and regulation.

The right to defence is substantial both as an individual right and from the point of view of the law's institutional protection aspect and the fulfilment of the obligations by the state.

The new Ombudsman Act (CFRA), quite reasonably from the perspective of constitutional law, does not entitle the Commissioner for Fundamental Rights to investigate, either ex officio or acting on a complaint, the activities, practices and decisions of lawyers; however, it entitles the Commissioner for Fundamental Rights to inquire ex officio into the activities of public bodies with mandatory membership, such as bar associations.

Pursuant to the CFRA, ex officio proceedings aimed at eradicating the improprieties related to fundamental rights, arisen in the course of activities of the authorities were extended to investigating improprieties affecting larger groups of citizens, the enforcement of fundamental rights and to initiating legislative amendments with the competent ministries.

In carrying out his task, the Commissioner for Fundamental Rights closely cooperated with the bar associations, the Hungarian Helsinki Committee, and tried to involve the competent ministry, the leaders of the penitentiary institutions, the prosecution and the police, as well.

The project summarized  the complaints received from citizens and prepared nine reports, holding a mirror to the state, the legal profession and the society so that those in need and their legal representatives could exercise their fundamental rights at the highest possible level. During the implementation of the project, special attention was paid to the lawyers' ability to operate without fear and unwarranted outside influence and to the equality of procedural right's instruments.

The "Dignity of Labour" Project

Ever since its establishment, the Ombudsman's Office has been receiving numerous complaints related to labour law. Working activity and the absence thereof, that is, unemployment, are a major concern in people's lives. The persisting crisis and the increasing unemployment have been drawing attention to the importance of employment not only in Hungary but all over the world.

In 2012, a number of changes were introduced in the field of the regulation of employment relationships. The new Basic Law, replacing the former Constitution, has been in force since 1 January 2012. The Basic Law pays special attention to the role of work, setting out several new elements concerning the rights and obligations related to working activity. In July 2012 a new Labour Code entered into force which contains a number of novelties, ensuring, however, fewer safeguards for the employees. As of 2013, the government has introduced a new community work programme whose objective is to provide work to 200,000 people.

As a consequence of what has been described above, in 2012 the Commissioner for Fundamental Rights launched a project entitled "Dignity of Labour".

The Ombudsman paid special attention to the rights of the most vulnerable social strata, primarily focusing on the employment opportunities of the people belonging to different protected groups. The ombudsman examined the employment of women and mothers (parents) with small children in different alternative forms – like teleworking and part time work – in both the public and the private sector. Employment opportunities for career starters were also explored. In addition, the ombudsman surveyed what opportunities and assistance were available to the homeless and to former detainees in order to facilitate their re-entry into the world of labour. Furthermore, the project examined the impact of benefits given to employers employing people with disabilities, and the practical implementation of integrated employment for these people.

During his investigations, the Commissioner for Fundamental Rights focused his attention not on the enforcement of the right to work as a fundamental right –he intended to find out instead how and to what extent such fundamental rights as the rights to human dignity, equal treatment and the requirements of fair procedure and the rule of law were observed.

Project on the 'Losers of the Crisis – in the Captivity of the Legal Regulations'

In a crisis situation, the continued deterioration of economic and financial situation negatively affects the whole society, and particularly the vulnerable groups. The shrinking resources weaken the social solidarity: more and more gaps arising between the majority of the society and some groups with weaker lobbying ability (e.g.: the Roma, the homeless people, the unemployed persons, the victims of usury, the persons living in a dangerous environment, the refugees, etc.). The contradiction of legislation and the pitfalls of administrative procedures can justify the project's subtitle: „In the captivity of legal regulations". Within a rapidly changing environment, the institutions and norms cannot help the adequate and flexible social and personal search for answers and approval.  The weakening social cohesion, the prejudiced forms of thought (hate speech), the spread of extremist behaviour and the social-psychological process of scapegoat training can be connected to the concept and the phenomena of the crisis.

The worsening economic conditions and social concerns are answered often rapidly and in a misguided way, without achieving the targets; or simply legislative and judicial restraint answers are born.

Disaster Management Project

Unfortunately, in 2010 a series of natural and industrial disasters came upon the country. The fifteen years of experience of the ombudsmen as well as the experience of the year 2010 made it clear that it is necessary to make a complex assessment of state tasks related to disaster management and to examine from a fundamental rights protection point of view the cooperation of state organs in the event of disaster situations.

In the light of the above, the Ombudsman examined in 2011, within the framework of an autonomous fundamental rights project, among others, the following range of subjects: follow-up inquiries of previous comprehensive ombudsman inquiries, so for example on the fire brigades; psychological services provision at the law enforcement organs; cooperation of law enforcement and public administration organs and of local governments during emergencies and thereafter; professional management in the event of disaster situations; direction and organisation of the fire brigade and its communications with the organisation for disaster management and with civil protection; timeliness of intervention of certain emergency services and the existence of technical resources for rapid and expert intervention; practice and legal regulation of the mitigation of damages and of repairs and reconstruction, as well as the procedural guarantees related thereto, and certain questions of the reconstruction by the State in the aftermath of the red sludge catastrophe.