Numărul 2 / 2007

 

 

THE CULTURAL FREEDOM OF NATIONAL AND ETHNIC MINORITIES IN HUNGARY IN THE CONTEXT OF THE MINORITY ACT

Judit ZELLER*

 

 

Abstract:  The matter of minorities is a much-debated issue in the contemporary world, including the legal field. Although international institutions and scholars did not yet reach an agreement as far as the definition of minorities is concerned, there are a number of international agreements dealing with the protection of minorities, the jurisprudence of the European Court of Human Rights occasionally addresses this matter and a number of scholars, parties, non-governmental organisations or simple citizens engage in sometimes fierce debates on the same topic. The purpose of this article is neither to define minorities, nor to rule on the extent of their rights, in a specific territory. The author chose to describe and analyse a model - the Hungarian model of cultural freedom for national and ethnic minorities, as regulated by the Hungarian Minority Act. The approach is completed by a thorough analysis of the jurisprudence of the Hungarian Constitutional Court in this field and it points out that although the legal regulation has to be ameliorated as well, the main goal should be to introduce chages in the mentality and in the way of thinking in connection with minority questions.

 

 

Historical Background

 

I.                   From the founding of the Hungarian state to the turkish occupation

 

The first "foreigners" to settle in the Carpathian basin after the foundation of Hungarian state 10th and 11th century were German knights, Italian and French monks. István I., the first Christian king and founder of the Hungarian state, invited them into the country to help spread Christianity and Western European social norms. The successors of the throne in the following decades also invited French, Dutch, Italian and German settlers to populate the deserted areas of the country. The first big change in the ethnic structure of the country occurred however only at the beginning the Turkish wars, which started in the 15th century. During the 150 years of Turkish occupation the country's population decreased drastically in the central parts of the country, while a massive immigration of Romanians and Serbs - pushed by the Turks - began along the Eastern and Southern borders. The minorities just like the Hungarian majority have suffered a lot under the Turkish occupation, their number decreased and they have been forced back to much smaller territories by the occupants.

After the Turks were driven out of the country in the 17th century, two major processes characterized the formation of minority groups.

1.       Primarily the population of the previously Hungarian-occupied and abandoned areas of the country with German settlers by the Habsburg rulers. Mostly the closed regions of the Transdanubian Mountains gave home for this group. As most of the Germans came from the so called "Swabian" territories of Germany, all German settlers of the 17-18th century and their descendants are still called "swabs" in Hungary.

2.       Secondarily the natural immigration from different neighbouring countries. The settlers hoped for better living in a country with a small density of population. Mostly Serbs, Croatians, Romanians and Slovaks came to Hungary.

The last large immigration wave occurred in the 19th century, when Jewish population showed up in greater extents in Hungary. At the same time the second wave of the Roma population reached the country as well. As a result of this, the total number of national and ethnic minorities living in Hungary at the end of the 18th century was higher than the number of Hungarians. According to the result of a census, only 41-48% (percent) of the population was Hungarian in the middle of the 19th century.[1]

 

II.                From the reform movements of the 19th century to the World War I

 

On the session of the Parliament in 1843-44, Hungarian has been accepted as the official language of the country. This has led to grave conflicts between the Hungarians and the minorities of the country. The minorities demanded minority rights in cultural fields and in the use of their languages. Thus, it is almost obvious that after the 1848-49 revolution, in 1868, Hungary's parliament was the first in Europe to pass an Act on national and ethnic minorities, Act XLIV of 1868 on the Equal Rights of Nationalities. In theory, the Act was innovative and liberal:

-         it stated that the every citizen - regardless on the nationality - belongs to the Hungarian nation;

-         it provided the possibility to use minority languages in public life;

-         Acts of the Parliament should have been translated into the minority languages (the authorities should use the language of the minority population at a certain territory; minority languages could have be used in front of the courts; petitions to the highest forums of public life - legislation, the ministries, etc. - could have been submitted in minority languages);

-          primary education was held in the minority language (Hungarian was not even supposed to be taught as a subject), the universities had to establish departments for the minority languages common in the given territory.[2]

On the contrary, in practice, little was realized of the provisions of the law, not even its executive decree was adopted.[3]

In the year of 1879 the Act XVIII on Education introduced the teaching of Hungarian language as an obligatory subject in all primary schools, and according to the law history and literature had to be taught in Hungarian even in the schools of ethnic minorities. This was already a part of the concept of the so-called "Hungarianization".

At the end of the 19th century the voluntary assimilation was also characteristic of some minority groups, mostly of Jews and Germans. Apart from these scattered efforts, the forced assimilation process invoked mostly resistance and led to the emergence of minority movements. The results of the census in 1900 showed the consequences (the fiasco) of the assimilation process: it came out that only 60% of the population has Hungarian as a mother-tongue, although some researchers think that even this number was an overestimation of the Hungarian population. According to the data of the 1910 census, among the population that amounted to 18.264.533 people, the proportion of minorities was the following.[4]

 

Table 1

 

III.             The World Wars and their consequences

 

After World War I, the peace treaties of Versailles signed in 1920 redefined the frontiers of the country and decreased its territory from 324.411 km²-s to 92.963 km²-s. The demographical consequences of these treaties can be summarized as that Hungary has become an almost one-nation state, because the minority populated territories have been detached from the country.

On the other hand, a considerable number of other nationalities remained within the frontiers of the new Hungary: according to the 1920 census 10.4% of the population spoke one of the minority languages as mother-tongue: 551.211 German (6.9%), 141.882 Slovak (1.8%), 23.760 Romanian (0.3%), 36.858 Croatian (0.5%), 17.131 Serbian (0.2%) and about 7.000 Slovenes. Hungarian was spoken by 96% of the total population and was the mother-tongue of 89%.[5] The percentage and the absolute number of all non-Hungarian nationalities decreased in the next decades, although the total population of the country increased. Bilingualism was also disappearing. The main reasons of this process were the spontaneous assimilation and the Hungarianization policy of the state. Minorities amounted to 8% of the total population in 1930 and 7% in 1941 (in the post-Trianon territory).

Between the two world wars the most significant legislation concerning the minorities was the "Numerus Clausus Act" of 1920 that fixed the proportion of university students from minorities. Actually the Act was against the Jewish population but it also affected the other minorities of Hungary. In the years of the Second World War the holocaust have lead to the death of approximately 600.000 Jewish and 60-70.000 Roma people.

After the Second World War about 200.000 Germans were deported to Germany according to the regulations of the decree accepted at the Potsdam Conference.[6] Almost half of the German population has been deported to Western and Eastern Germany. It is still not clear according to what principles the Hungarian authorities have chosen the villages from which the Germans were removed. As mentioned before, the German population has assimilated willingly, they regarded Hungary as their home, and the deportation was therefore even more painful for them. Some of the Swabians have started a "fidelity movement" during the war against the Nazis; others have sent Hungarians who wanted to emigrate to the deportation commettees instead of themselves. After their deportation almost 2/3 of these Germans have flown back to Hungary, where they had their homes. During the forced exchange of population between Czechoslovakia and Hungary, approximately 73.000 Slovaks left Hungary. The population exchange was quite unproportional, as the number of Hungarians in Czechoslovakia was more than a million. Finally hundred thousands of Hungarians were forced "back" to Hungary and the exchange had to be stopped, because the large number of new inhabitants would have laid a huge burden on the economy of Hungary.

After these population movements Hungary became an ethnically almost homogeneous country except the growing number of Roma people in the second half of the 20th century.

 

IV.              The communist regime

 

In the communist regime many laws has been passed concerning the minorities. Most of them dealt with the cultural rights of the minorities, especially the use of their languages and education. According to the regulation of 1945 the parents of at least 10 children could have decided whether their children should be educated in the native minority language or in Hungarian.[7] For the opening of a minority school, permission from the minister of education was required. The relevant law has simplified the system of minority education, as it limited the educational forms to two types of schools:

-          pure minority language education,

-          education basically in Hungarian but in special classes where some subjects were taught in the minority language.

In 1945 the academic year has started with 92 minority schools of both types. In the year of 1949 the newly enacted Constitution declared that "The Hungarian People's Republic ensures for all the minorities living in the territory of Hungary the right to the use of the native language and the fostering of the minority culture."[8] From the 1960-s the two type model has been revised, pure minority language education has been restricted, and the Hungarian language had been introduced step by step in the former minority schools. The Ministry of Education explained the decision with the reasoning that the minority schools didn't develop properly, and the number of children decreased continuously. The restitution of the pure minority schools only began in 1985.

 

The legal regulation on minority rights

 

I.                   International and supranational regulation

 

According to Article 7 of the Hungarian Constitution (Act XX of 1949) ratified international agreements are parts of the Hungarian legal system. Therefore it is obligatory for the legislator to comply with the following international treaties on human rights: International Covenant on Civil and Political Rights, [9] the Framework Convention on the Protection of National Minorities[10] and the European Charter on Minority and Regional Languages.[11]

 

II.                Regulation in the framework of the Hungarian constitutional law

 

A brief overview of the legal regulation of the European countries offers a context for comparison. The constitutions of the countries are usually very reserved concerning the rights of national and ethnic minorities. Only few of them (eg: Belgium, Czech Republic, Finland, Italy and Poland) ensure individual rights as well as collective rights. The rights declared most common for the individual are the use of the minority language, the confession to the national identity and the fostering of traditions. The collective rights usually incorporate cultural rights and sometimes political rights as well.[12] We can draw the conclusion that the recongnition of minority rights is scattered in Europe.

The Hungarian Constitution declares in Article 68 that "the national and ethnic minorities living in the Republic of Hungary participate in the sovereign power of the people: they represent a constituent part of the State. The Republic of Hungary shall provide for the protection of national and ethnic minorities and ensure their collective participation in public affairs, the fostering of their cultures, the use of their native languages, education in their native languages and the use of names in their native languages". The Constitution also emphasizes that the laws of the Republic of Hungary shall ensure representation for the national and ethnic minorities living within the country, and additionally settle a task for the legislator: such regulations shall be enacted (with two-third majority) which ensure functioning of minority rights.[13]

Detailed regulation of minority rights can be found in Act LXXVII of 1993 on the Rights of National and Ethnic Minorities (hereinafter referred to as: Minority Act). The Minority Act considers the right to national or ethnic identity as a fundamental human right, the other individual and collective rights as fundamental freedoms. In their entirety these rights are neither a „gift" from the majority or the privilege of the minority, nor is their basis the numerical proportion of the national and ethnic minorities within the majority nation, but the right to be different, which is based on the respect for the freedom of the individual and for social harmony. The Minority Act declares that in its concept of equality and solidarity as well as the principles of the active protection of minorities, it is guided by respect for minorities, esteem for moral and historical values, the consistent representation of the shared interests of the minorities and the Hungarian nation within the framework of recognised universal moral and legal norms.[14]

Three positive features of the Minority Act have to be emphasized:

-          it acknowledges the right of the individual to choose a collective self identity in full extent,

-          it guarantees collective rights for the minorities which are also the guarantees of individual minority rights,

-          it guarantees appearance in public life for the institutions and organisations of minorities, i.e. the right of self-governance of minorities.

The constitutional and other legal regulations were interpreted by the Constitutional Court of Hungary several times.

 

The rights of minorities in the system of fundamental rights

 

I.                   The subjects and the nature of the minority rights

 

Primarily we can state that there is no scientific definition for the concept of minorities in Hungary, although we can define some criteria, which are the following:

-          the group is not in a dominant situation within the population,

-          the members have such characteristics in language, confession and ethnicity which distinguish them from the rest of the population,

-          they try to preserve their special identity and solidarity.[15]

The subjects of the minority rights can only be such persons that differ from the majority of the population in nationality, ethnicity, language, culture, etc. Their minority rights are justified with these facts. The Minority Act defines expressis verbis the subjects of minority rights (legal definition). The members of a group are considered as belonging to a national or ethnic minority (autochtonous minority) in Hungary, if

-          they have been living in the territory of Hungary for at least 100 years,

-          they are in a numerical minority in the population,

-          the members are Hungarian citizens,

-          they have an own language, culture and own traditions,

-          they demonstrate their sense of belonging together that aims the preservation of language, culture and traditions and the expression and protection of their collective interests.[16]

Consequently, the protection system of the Minority Act extends over the Hungarian citizens who define themselves as the members of a minority and over the collectives of these citizens. Therefore the protection of minorities does not extend to refugees, immigrants, displaced and foreigners settled in the country (not even EU citizens enjoy the rights of minorities). According to the legal regulations Hungary has 13 minority groups with the same legal status at the present: Ukrainians, Ruthenians, Polish, Slovaks, Germans, Slovenians, Croatians, Serbians, Romanians, Bulgarians, Greeks, Armenians, and the Romas.[17]

Groups which have a motherland where they are in majority are called national minorities (such as Germans, Croatians etc.), groups which don't have motherland are called ethnic minorities. Hungary has only one ethnic minority, the Roma population.[18] The enumeration of the minorities is not final: it is possible for further groups to recognize their national or ethnic identity in the form of a national popular initiative. At least 1.000 people have to state and testify with their signature that they meet the abovementioned requirements of minorities; the Parliament has the competence to decide over the initiative and accept a group as a new minority group.[19] Such initiatives of the near past stemmed from the potential minority group of the "Hun minority" and from the Jewish population of Hungary. Concerning the Huns, as they have no common language that differs from the majority language and no own traditions, the initiative has been rejected by the Parliament. The Jewish population began the official collection of the signatures, but failed the deadline. Consequently, Jewish people are still not recognized as a minority in Hungary.

 

Table 2 shows the change in the number of Hungarian citizens belonging to certain ethnical groups in the last decades, according to their mother-tongues.

 

Table 2[20]

 

II.                The rights of the minorities[21]

 

According to the regulation of the Minority Act the rights of the minorities can be sorted into two major types: individual and collective minority rights. As most of the minority rights are ensured in a more or less similar form for both the individual and the collective, it is more reasonable to examine the two types parallel to each other. The following analysis focuses primarily on the cultural rights of national and ethnic minorities in Hungary, and examines other groups of rights and institutions only insofar as a reference to those rights is inevitable for the proper understanding of the minority rights system.

 

1.      Right to self-identity

 

a) Individual right to self-identity (decision on self-identity, stating the minority affiliation)

aa) To decide on the belonging to a certain national or ethnic minority and to reveal this information to the public belongs to the right to self-determination and identity deduced from the right to human dignity. This right can also be interpreted as a negative right: it is not obligatory to reveal one's belonging to a certain minority. This is the point where the rights to the protection of personal data and the minority rights are connected. However, this doesn't mean that choosing a certain national or ethnic identity can not be disputed. Stating the minority identity is an absolute right only in the negative sense (no one can be forced to confess it) but nobody has the right to be a member of a certain minority only on the basis of an own decision.[22] The exercise of some minority rights is bound to a statement on the minority affiliation (eg: at the elections of the minority self-governments, the affiliation has to be confirmed officially). Stating the national or ethnic minority affiliation does not exclude the acceptance of a double or multi-belonging (eg: Roma and Hungarian).[23]

 

ab) It is the right of every person belonging to a minority to state this affiliation at the national census.[24] The data regarding someone's belonging to a minority are considered as special personal data and shall only be revealed with the written consent of the person. This can only be restricted by law based on an international treaty or in the case of criminal prevention or investigation.[25]

 

b) Collective right to self-identity

The minority group has the right to the protection and fostering of the self-identity, further, the fostering and developing the traditions and language, keeping and protecting the objectifications of their culture, the celebration of the own feasts and the right to use certain nationality symbols.[26]

 

2.      Right to participation

 

National and ethnic minorities have the right form minority self-governments on 3 levels in Hungary and these self-governments play a significant role in organizing and supporting the cultural life of the minorities.

a) Individual participational rights

Persons belonging to minorities have the right to equal opportunities in the political and cultural life. This equal opportunity has to be promoted by effective state measures. The participation of people belonging to minorities in the public life can not be restricted by any measure. Minorities have the right to found associations and parties or other civil organisations to express their interests.[27]

 

b) Collective participational rights

 

ba) Self-organisation

 

Minority communities have the right to self-organisation, and can, in accordance with the law, establish any organisation.[28] The opportunity of the self-organisation has singificant importance in the organisation of the cultural life of minorities: associations, funds promoting the fostering of cultural heritage, educational and scientific institutions which contribute to the preservation of minority culture can be established wihin the frames of this right.

bb) Minority self-governments

In the Republic of Hungary minorities have the right to establish local, regional and national self-governments (hereinafter uniformly: minority self-governments). The basic function of minority self-governments is to protect and represent the interests of minorities by performing their duties and exercising their statutory authority.

From the practice of the Constitutional Court we can underline that the Court stated: the Constitution does not define how the minority self-governments shall be established and how the minority representatives shall be elected. It is therefore the competence of the legislator to ensure the representation of minorties in the form of local self-governments and the legislator enjoys a wide margin of appreciation. We can derive only some principles for the regulation from the Constitution: the right to self-government itself, equality of the right to vote, furthermore the proportionality or democratic legitimacy shall be taken into consideration when regulating the minority elections and the status of minority self-governments.[29]

The former regulation had no detailed provisions on the right to vote at the minority elections, consequently, everybody who had right to vote on the general election of mayors and (not minority) local self-governments automatically had the right to vote on the election of minority municipalities as well. As the minority elections were organised together with the election of the mayors and local self-governments, the voter had to state only the wish to take part in the minority elections in front of the ballot counting committee and - if he/she had the right to vote in general - he/she was allowed to vote for a minority local representative as well, without any further control. This often led to a misuse of the right to vote. Many citizens, who were not members of minorities, have also voted on the minority elections.

The Minority Act and the Act on the Electoral Procedure[30] have been modified in 2005, and established a minimal, mostly administrative control of the voters at the minority elections. According to the present regulation to exercise the right to vote on the minority elections, the person:

-          has to belong to a certain minority and state this affiliation,

-          has to be a Hungarian citizen,

-          has to have the right to vote at the general election of the mayors and local self governments,

-          has to appear in the register of voters that confirms their right to vote.[31]

The problematic part of the abovementioned criteria is the belonging to a certain minority and in connection with this the appearance in the register of voters. To appear in the register, the member of the minority has to apply with a written statement on the belonging to a certain minority to the head of the authorised local election office (to the town clerk). The statement shall contain only one chosen minority, if someone applies for more minorities, all the applications are invalid.[32]

There are no provisions concerning the control of the authenticity of the statement, because - as mentioned above - the state itself can not keep any records on the ethnic or national belonging of the citizens and the citizens can not be forced to state their belonging to a minority group. The head of the local election office can therefore only examine the fulfilment of the formal criteria and above this the good faith and the seriousness of the statement.[33]

 

c) The system of minority self-governments

 

ca) Types and election of the minority self-governments

The self-government system is a 3 level organisation: minorities have the right to establish local, county and national self-governments. Establishing regional level self-governments has been a new concept of the regulation, county-level minority self-governments have been elected in 2006 (at the last minority elections) for the first time.

Local minority self-governments are representative bodies with 5 members, elected by the minority voters directly. Local minority self-government elections shall be called if at least 30 voters from the same minority are registered in the minority election register and at least 5 candidates are registered by the election committees.[34] Candidates may be proposed only by minority civil organisations the statute of which involves the representation of a given national or ethnic minority as the aim of the organisation. The new regulation tries to exclude those from the circle of candidates, who are not of minority origin. Therefore the candidates have to state that:

-          he/she stands for the representation of the given minority,

-          he/she is familiar with the minority language and culture,

-          whether he/she has already been a representative of a given minority.[35]

The result of the 2006 local minority self-government elections is shown in Table 3.

 

Table 3[36]

The county self-governments are elected indirectly by the representatives of the local minority self-governments as electors. The elections shall be called if at least 10 local minority governments are operating in a certain county. Electors vote on lists. Lists may be set up only by minority civil organisations, the statute of which involves the representing a given national or ethnic minority as the aim of the organisation. The mandates are assigned proportionally. County self-governments of minorities are organised as shown in Table 4.

 

Table 4[37]

The national minority self-governments are elected indirectly - by the electors - as well. The elections have to be called if at least 4 local minority self-governments are operating in the country. Lists can be set up by the same minority civil organisations, and electors vote on lists. The mandates are assigned proportionally. Table 5 shows which minorities have elected national self-governments in Hungary.

 

Table 5[38]

 

cb) Rights, duties and competences of the minority self governments

The minority self-governments may conduct minority public affairs individually or they may cooperate with state organs and municipal or regional self-governmental bodies. According to the Minority Act, a minority public affair is any affair

-          that is related to the provision of certain public services to the persons belonging to the minorities in the interest of the enforcement of individual and collective minority rights enshrined in the Minority Act,

-          tha serves the representation of the interests of persons belonging to national or ethnic minorities, particularly in the field of the preservation, the safeguarding and the enrichment of the mother tongue as well as the implementation and the preservation of cultural autonomy by minority self-governments,

-          that is in relation to guaranteeing minorities the right to representation in state organs and in municipal governments, as well as in minority self-governments, as well as to guaranteeing the organisational, personal and financial conditions necessary for this representation.[39]

 

The local minority self-government

Focusing on the cultural rights of minorities, the local minority self-government shall define within its powers and within the framework of existing laws

-          the local feasts of the minority represented,

-          the foundation, the take over and the administration of minority cultural institutions,

-          the establishment of scholarships for minority students,

-          the initiative to declare its historical buildings and memorial sites as being protected by law.[40]

For fulfilment of these tasks the local minority self-government in entitled to:

-          the utilization of the assets of the municipal government that have been put separately at its disposal,

-          define its annual budget, and the utilization of resources put at its disposal, within the framework of the budgetary decree of the municipal government.

The local minority goverment has the right of approval in certain questions as well. In the field of the regulation of local media, the promotion of local traditions and culture, and the collective use of language, any decrees of the majority local self-government affecting the minority population may be passed only with the approval of the minority self-government representing this population. The appointment (and the dismissal) of heads of minority institutions, as well as the decisions of the municipal government concerning the education of people belonging to minorities require the approval of the local minority self-governments affected. In the absence of minority self-government, the local association of the given minority must be consulted.[41]

 

The county-level minority self-government

The county self-government contributes in the field of secondary education, vocational schools and administration of dormitories of the given minority to the professional supervision of state organs.[42]

 

The national minority self government

The national self-government represents and protects the rights of the minority represented by it on the national level, and also on the county level if the given minority has no county self-government. In the interest of developing the cultural autonomy of the given minority, it may establish institutions and co-ordinate their activities. Concerning the cultural rights, the national self-government - in accordance with the law - decides independently on

-          the nation-wide feasts and on the symbols of the represented minority,

-          the principles of the utilisation of the public radio and television air time at its disposal,

-          the establishment, administration, operation and liquidation of institutions, particularly primary and secondary minority educational institutions, and higher educational institutions or training courses to be offered in institutions of higher education,

-          the administration of a theatres, museums, exhibition halls, libraries and public collections, the establishment and administration of an artistic or scientific institutes, and publishing houses,

-          the conclusion of minority public education agreements with the Minister of Education under the Act on Public Education and with the municipal government and

-          the performance of other duties which legally fall within its scope of powers and duties.[43]

The national self-government has also the right of approval and stating its opinion. It may

-          state its opinion on bills issued by the Parliament affecting the minority,

-          state its opinion on the domestic implementation of bilateral and multilateral agreements concerning the protection of minorities, and it also may propose measures in favour of their enforcement.[44]

In the course of legislation on the preservation and conservation of the historical settlements and architectural monuments of minorities (with the exception of the decrees of municipal governments), and also in the course of the drafting government decrees on the implementation of the Act on Public Education, the national self-government is entitled to the right of consent concerning the kindergarten and school education of those belonging to a minority.[45]

 

cd) Evaluating the new regulation of the local minority self-governments

 

After the eletions more investigations were performed to analyse, whether the new system has contributed to the better representation of minorities on the local level, and had prevented the misuse of minority political rights. The results of the analyses of the parliamentary ombudsman for national and ethnic minority rights were the following.

As mentioned before, members of the minorities who wanted to exercise their right to vote in the year 2006, had to register at the local election committee by filling out a form and sending it back to the election committee. Although every person with a right to vote had received the blank, the information of the voters was not proper enough. Many of the people thought it was a campaign-letter of a party, some just didn't know what to do and how to register. Consequently many peope only realized on the day of the minority elections that they are not legally registered, so they have no opportunity to vote.[46] As a conclusive remark we can state that the information campaign of the method of registration has to be developed in the future.

Regarding the misuse of minority rights there is still no protection system that can hold back those from voting who are not members of a minority. If someone fills out the blank and sends it back with the statement that he/she belongs to a minority, the election committee has no right to doubt whether the statement was true or not. The head of the election office could not even refuse the registration when it was obvious that a certain person doesn't belong to a minority. The National Election Office together with the National Statistic Office has reported that 30 minority voter have been registered in a settlement where only 3 people have stated the minority belonging at the census in 2001. The problem was the same with the candidates and the minority organisations which have set up the lists. Many of the candidating organisations were „fake" minority organisations as only their statute stated the aim of representation of a given national or ethnic minority in reality they only wanted to set up a list and have minority representatives in the settlement.[47] The minority Ombudsman therefore has proposed to change the law that way that minority organisations have to prove their real activity in the field of promoting minority issues and fulfilling minotrity tasks.

 

 

dc) Representation in the Parliament

As already mentioned before, Article 68 of the Constitution states that minorities have the right to political representation; the Minority Act ensures the parliamentary representation of minorities. Despite of the provisions of the Constitution and the Minority Act the problem of representation of minorities in the Parliament has not been solved yet. The Constitutional Court stated in a decision of 1992[48] that the Parliament is in omission as long as it does not pass the required law on the parliamentary representation of minorities. As the Counstitutional Court has no opportunity to instruct the Parliament and there are no sanctions against the Parliament, we have to wait until the Parliament decides independently to regulate the question concerned.

 

3.      Cultural rights (traditions, language, and education)

 

This diverse group of rights aims the protection of the cultural autonomy of the minorities in Hungary.

 

a) Rights related to the individual and the family

 

Members of the minorities have the right

-          to the respect of the minority traditions, to foster the family relationships, to celebrate the family events and to arrange the related religious ceremonies on their own language,

-          to get familiar with their history, culture, traditions, customs, foster and hand them down to the future generations,

-          to choose their own names and the name of their children, register the names with the spelling of the own language and indicate it in the official personal documents. If the alphabet of the own language is not Latin, the indication with Latin spelling is obligatory.[49]

 

b) Educational rights

 

Concerning individual rights, parents can decide, whether their child should attend a minority school and learn the obligatory subjects in the native language or a bilingual school. The third choice is the attendance of a Hungarian school. After reaching the age of 14 children shall decide together with heir parents. We have to mention however that the nationality schools are open to the Hungarian majority as well. As in Hungary parents have the right to choose the educational institute for their children, it is also possible for the Hungarian majority to choose a minority school.[50]

In the framework of collective rights, in the kindergarten, primary and secondary school education the history, culture and traditions of the motherland and the minority itself shall constitutes the significant part of the curricula. Minority groups have the right to initiate the establishment of minority educational institutes or minority education in general educational institutes. They also have the right to establish - in the frames of the relevant law - countrywide educational, cultural or scientific networks.[51]

The municipal (not minority) self-government shall organize the kindergarten education in the native language if the parents of at least 8 children from the same minority group have requested. If the number of children doesn't enable to organize the education within a single settlement, on the initiation of the national minority self-government, the county self-government has to take care of the complementary minority education.

The cultural autonomy of the minorities has to be taken into consideration at the legal regulation, establishment of the system and control of the public and university education. The state shall support the education of the teachers of minority subjects.

Acording to the investigations of the Parliametary Ombudsman for the national and ethnic minority rights in the last few years no significant changes have occurred in the filed of minority education. The quality of the university education of minority teachers has not increased in the last years, complex minority teacher education is organised only for the German, Slovakian and Croatian minority. For the Armenian, Greek and Roma minority the education of teachers is missing. Therefore it is important to promote the participation of future teachers belonging to a minority in the university education of the motherlands (abroad) with the help of scholarships from the state.

The integration of the Roma minority with the help of the education raises numerous serious questions. In 2002 the Ministry of Education began with the integration programme of disadvantaged roma pupils. In the year 2004, under the coordination of the Prime Minister's Office the Government started the "Roma Integration Decade" programme. The programme aims the amelioration of the schooling of Roma people. The clue of successful integration is the elimination of the segregation. According to the recent reports of the Minority Ombudsman there are still schools functioning with segregated classes for Roma children. The schools usually explain this phenomenon with the "fact" that roma children need special tuitition because of their disadvantaged family situation. In fact this is only partially true. The indirect discrimination occurs usually on the initiative of the non-roma parents who don't want their children to be taught together with roma. As a consequence of this (as it has been said by a mayor of a certain settlement) "the educational institutes just don't like roma children".[52]

 

c) Use of language as a basis of cultural rights

 

In the Republic of Hungary everybody has the right to use his/her native language. The state shall ensure this possibility for the members of the minorities also. In the civil and criminal processes as well as in the administrative processes the right to the use of the own language is ensured by the relevant law. These provisions contribute to the equal opportunities and equality before the courts and authorities. Nobody can be disadvantaged because of the lack of language knowledge.

According to the process laws of Hungary, state-financed translators shall be provided for every participant who doesn't speak or understand the Hungarian language. According to the Act on Administrative Procedure[53] members and organisations of the minorities have the right to use their native language orally and in writing before the authorities. The authority shall publish its decision in the minority language, if this is requested by the participants of the procedure.[54]

The right to the use of the minority language ensures the representatives, belonging to a minority group, to use their mother-tongue in the sessions of the Parliament and the representative body of municipal governments. If there are minorties present in the settlement, the minutes shall be translated to and published also in the minortity language.[55]

The local self government (according to the request of minority groups) has the duty to ensure

-          the publication of local decrees or announcements in the minoritylanguage as well,

-          the translation of blanks and forms used in the administrative proceedings into the minority language,

-          signs bearing the names of settlements and streets, public offices, and companies offering public services, or announcements relating to their operations - in addition to the Hungarian wording and spelling, with the same content and form - may also be read in the mother tongue of the minority.[56]

 

4.      Communicational rights

 

a) Public media and broadcasting

 

According to Act I of 1996 on the Radio and Television Broadcasting the public media shall ensure the regular appearance of the minorities in the public radio and television. On certain territories inhabited by minorities, the government promotes - also through international treaties - the reception of radio and television programmes from the mother state.

Almost every minority has its own (usually weekly) programme in the National Public Television that gives information about the political and cultural topics concerning the given minority, introduces the minority social life, the values, the events and contributes to the preservation and dissemination of the minority language and culture. Additionally we can mention that in Hungary the public media is lead by the advisory board of public media funds. These advisory boards decide on the concept of programme structure of the public media. The representation of minorities in these advisory boards is also obligatory.

Despite of the abovementioned appropriate legal regulation, many problems emerge in connection with the appearance of minorities in the public and private, written and electronic media. As stated by the Parliamentary Ombudsman for National and Ethnic Minority Rights, one of the greatest problems is the negative or discriminative presentation of minorities (mostly of the Roma minority). Media stars, television and radio programmes handle the news in connection with the Roma minority as great sensations in a negative sense. This news is able to increase the negative attitudes towards minorities and lead to the strengthening of stereotypes. Te one-sided information contains sometimes explicit prejudices. As the Hungarian media doesn't dispose over an ethical code or an ethical committee, no one has the competence to decide over the ethical boundaries of media communication. It is also worriesome that sometimes official statements from members of authorities or public servants include discriminating elements which contribute to the growing segregation of minority (primarily Roma) people and to the wavering of peace in the society. According to recent analyses every second adult in Hungary revails his/her aversion against Roma more or less openly. The responsibility of the media is undeniable, because it not only reflects the reality but includes judgenements as well.[57]

 

III.             The guarantees of the minority rights

 

1.      Institutional guarantees

 

a) The Parliamentary Ombudsman

 

The Parliament shall elect an Ombudsman for National and Ethnic Minority Rights. The Parliamentary Ombudsman for the Rights of National and Ethnic Minorities is responsible for investigating or initiating the investigation of cases involving the infringement of the rights of national or ethnic minorities which come to his attention and initiating general or specific measures for their remedy.

Everyone has the right to initiate proceedings by the Ombudsman for minorities if - in his/her opinion - an authority (eg. ministries, enforcement agencies, self-governments etc.) or an organisation providing public service (eg. public utilities, media etc.) has infringed his/her minority rights.

 

b) Administrative bodies

 

In 1990 the Government has established the National and Ethnic Minority Office for the fulfilment of duties of the state in connection with minorities. At present, the different duties of the Government in connenction with minorities are performed by the National and Ethnic Minority Department of the Prime Minister's Office.[58] Its task is to prepare the decisions in minority affairs, to monitor the enforcement of minority rights and to analyse the present situation of minorities, including the public opinions related to the minorities. The Office contributes to the development of the government's minority policy and coordinates its execution and communicates with the ombudsman for minorities, the national self-governments of minorities, promotes the cooperation between the Government and the minority self-governments and minority interest groups as well.

 

2.      Financial guarantees

 

Financing is a crucial point of minority policy. Adequate state contributions are inevitable for fulfilling the tasks prescribed by the Minority Act, for enforcing the minorty rights, and for maintaining the minority cultural heritage. For conducting minority public affairs, the state shall, in the Act on State Budget

-          allocate financial support, the conditions of which shall be determined by a government decree,

-          provide additional normative support for the kindergarten education of minorities, and for their schooling in their mother tongue or their bilingual education,

-          provide the financial assistance in the field of the cultural and educational autonomy of minorities,

-          provide financial assistance for the Public Foundation for National and Ethnic Minorities, and for the minority civil organisations.[59]

The Public Foundation for National and Ethnic Minorities has been established by the Government to help preserve the identity of minorities living in Hungary. The Fundation helps minorities to foster and pass on their traditions, preserve and develop their mother-tongues, preserve their intellectual and material monuments, and promote activities aimed at reducing the cultural and political disadvantages which derive from their minority affiliation.

Besides the state financing, domestic and foreign organisations, foundations and private persons may participate in the financing of minorities. This enables the mother-countries to help their minorities in Hungary as well. Above this, the minority self-governments also have the right to undertake business activities in accordance with the framework established by law. The business activities of minority self-governments and minority civil organisations are supervised by the National Audit Office.

 

3.      Political guarantees

 

Finally among the various guarantees, we can mention that the Republic of Hungary prohibits any policy that

-          aims at, or leads to, the assimilation of a minority into the majority nation, its exclusion of the majority nation or its segregation;

-          aims to alter the national or ethnic conditions of territories inhabited by minorities;

-          persecutes a national or ethnic minority or any of its members because of their national status, makes their living conditions more difficult, or prevents them from exercising their rights,

-          aims at the forced evacuation or resettlement of a national or ethnic minority.[60]

 

Concluding remarks

 

As the result of the analysis of the cultural rights of minorities and the institutions promoting the enforcement of these rights, we can state that the Hungarian legal system aims the comprehensive protection of minorities and ensures effective tools for the facilitation of exercising their rights. Despite these efforts, there are still several problems emerging in this field which have to be solved with the cooperation of the state and the society. Although the legal regulation has to be ameliorated as well, the main goal should be to introduce chages in the mentality and in the way of thinking in connection with minority questions. This means primarily taking the minority identity seriously without any misuse of minority status, secondarily the development of the principle of equality and the repulsion of discriminatory attitudes. These aims can only be reached if minority identity is understood as the part of the desired diversity in the pluralistic society.

 

 

* Conferenţiar, Facultatea de Ştiinţe Politice şi Juridice a Universităţii din Pécs, Ungaria, zellerj@ajk.pte.hu.

[1] Hungarian Helsinki Committee: The Situation Of Minorities in Hungary. http://www.helsinki.hu/docs/minoreportfull.pdf (2007.07. 10.)

[2] Article 1-8 Act XLIV of 1868

[3] Hungarian Helsinki Committee: The Situation Of Minorities in Hungary. http://www.helsinki.hu/docs/minoreportfull.pdf (2007.07. 10.)

[4] Tóth Pál Péter: Magyarország népessége 1850-től napjainkig. [The population of Hungary from 1850 till the present.] In. Korunk. February 2002.

[5] Tilkovszky, Loránt: Nemzetiségi politika Magyarországon a 20. században. [Minority politics in Hungary in the 20th century]. Csokonai Kiadó, Debrecen 1998. p 9

[6] Tilkovszky. op. cit. p 129-131

[7] Tilkovszky. op. cit. p 131

[8]Source: http://hu.wikipedia.org/wiki/Magyarorsz%C3%A1g_nemzetis%C3%A9gpolitik% C3%A1j a_1945-1989_k% C3% B6z%C3% B6tt (2007. 07. 10.)

[9] Enacted by Government Decree 8 of 1976

[10] Enacted by Act XXXIV. of 1999

[11] Enacted by Act LX of 1999

[12] Chronowski - Drinóczi - Petrétei - Tilk - Zeller: Magyar alkotmányjog III. Alapjogok. [Hungarian constitutional law III. Fundamental rights.] Dialóg Campus Kiadó, Budapest-Pécs 2006

[13] Art. 68 of the Hungarian Constitution

[14] Pramble to the Minority Act

[15] Kovács Péter: Nemzetközi jog és kisebbségvédelem. [International law and protection of minorities] Osiris Kiadó, Budapest 1996. p 36-37, Paczolay Péter: A kisebbségvédelem új módszerei. [New methods of the protection of minorities] In: Európa egysége és sokszínűsége: a kisebbségek jogai (Trócsányi László-Francis Delpérée ed.) Nyitott Könyv Kiadó, Szeged 2003. p 92

[16] Art. 1 Par 2 Minority Act

[17] Art. 61 Par. 1 Minority Act

[18] Chronowski - Drinóczi - Petrétei - Tilk - Zeller: Magyar alkotmányjog III. Alapjogok. [Hungarian constitutional law III. Fundamental rights.] Dialóg Campus Kiadó, Budapest-Pécs 2006

[19] Art. 61 Par. 2 Minority Act

[20] Source: Hungarian Central Statistical Office. http://www.nepszamlalas.hu/ eng/volumes /24/tables/prnt1_2.html (2007. 07. 10.)

[21] The structure of this part is based on: Chronowski - Drinóczi - Petrétei - Tilk - Zeller: Magyar alkotmányjog III. Alapjogok. [Hungarian constitutional law III. Fundamental rights.] Dialóg Campus Kiadó, Budapest-Pécs 2006

[22] Decision Nr. 45/2005. of the Hungarian Constitutional Court

[23] Art. 7 Par. 3 Minority Act

[24] Art. 8 Minority Act

[25] Art. 3 Par. 2 Point b) Act LXIII of 1992 on the Protection of Personal Data and the Disclosure of Information of Public Interest

[26] Art. 15-16 Minority Act

[27] Art. 9-10 Minority Act

[28] Art. 17. Minority Act

[29] Decision Nr. 34/2005. of the Hungarian Constitutional Court

[30] Act C of 1997

[31] Art. 2 Par. 1 Act CXIV of 2005 on the Elections of the Minority Self-Governments

[32] Art. 115/E-F Act on the Electoral Procedure

[33] Decision Nr. 45/2005. of the Hungarian Constitutional Court

[34] Art. 5 Act CXIV of 2005 on the Elections of the Minority Self-Governments

[35] Art. 115/J Par. 2 Act on the Electoral Procedure

[36] Source: http://www.valasztas.hu (2007. 07. 10.)

[37] Source: http://www.valasztas.hu (2007. 07. 10.)

[38] Source: http://www.valasztas.hu (2007. 07. 10.)

[39] Art. 6/A Par. 1 point 1 Minority Act

[40] Art. 25 Points c), e), i) and l) Minority Act

[41] Art. 28 Par. 1-2 Minority Act

[42] Art. 30/R Minority Act

[43] Art. 37 Points i)-u) Minority Act

[44] Art. 38 Par. 1 Minority Act

[45] Art. 38 Par. 2 Minority Act

[46] Report on the activity of the parliamentary ombudsman for the national and ethnic minority rights in the year 2006. Budapest 2007. http://www.obh.hu/nekh /en/reports/reports.htm (2007. 07. 10.)

[47] Report on the activity of the parliamentary ombudsman for the national and ethnic minority rights in the year 2006. Budapest 2007. http://www.obh.hu/nekh /en/reports/reports.htm (2007. 07. 10.)

[48] Decision Nr. 35/1992. of the Hungarian Constitutional Court

[49] Art. 11-13 Minority Act

[50] Art. 13, 45 and 46 Minority Act

[51] Art. 18 Par. 3 Minority Act

[52] Report on the activity of the parliamentary ombudsman for the national and ethnic minority rights in the year 2006. Budapest 2007. http://www.obh.hu/nekh /en/reports/reports.htm (2007. 07. 10.)

[53] Act CXL of 2004

[54] Art. 9 Par. 3 Act on the Administrative Procedure

[55] Art. 52 Minority Act

[56] Art. 53 Minority Act

[57] Report on the activity of the parliamentary ombudsman for the national and ethnic minority rights in the year 2006. Budapest 2007. http://www.obh.hu/nekh/ en/reports/reports.htm (2007. 07. 10.)

[58] Section 1 Government decree Nr. 363/2006.

[59] Art. 55 Par. 1 Minority Act

[60] Art. 4 Par. 1 Minority Act

 

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