introduction

The legislation of the Act on Equal Treatment and the Promotion of the Equality of Opportunities (Equal Treatment Act, ETA.,[1] hereafter) is a turning point in Hungary’s fight against discrimination. The comprehensive anti-discrimination code came into effect on January 27th, 2004, and even though it may be incomplete and certain sections of it may require future amendments, it still marks the beginning of a new era in legal rights protection.

Lawmakers were pressed by two reasons to create the law. On one hand, civil agencies with experience in legal rights protection as well as the ombudsman for the minorities claimed that the current anti-discriminatory measures did not provide effective protection for the victims of discrimination. On the other hand, our obligations to the European Union’s  law conformation suggested that changes are required in the legislation in Hungary.

The Hungarian anti-discriminatory system is founded in the section on prohibition of discrimination in the Constitution, which prohibits discrimination. This states that the Republic of Hungary shall ensure human and civil rights for everyone within its territory without discrimination of any kind, whether based upon race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or upon any other grounds. Any discrimination described above shall be severely punished by law. [2]

Anti-discriminatory provisions of sectoral law (Labour Code, the Act on Public Education, the Act on Media, the laws concerning the rights of minorities, etc.) intend to unfold and complete the provisions of ETA. This means that anti-discriminatory regulations can be found in almost all fields of law.

Despite the fact that the Constitution provided for prohibition of discrimination and, as we previously mentioned, so did numerous sectoral laws, we have found that in practice it is extremely difficult, in some cases even impossible for the victims of discrimination to claim legal redress. A reason for this was that the separate and quite inconsistent anti-discriminatory provisions of sectoral laws did not provide a comprehensive system (legal norms existed in only certain fields of law, but in others they didn’t), and furthermore a significant number of these regulations were declarative in nature and were not fitted with a correspondent system of sanctions. Therefore the constitutional provisions on severe punishment of discrimination could not be applicable either. Although several regulations stated the prohibition of discrimination, it was never specifically defined, which acts can be considered as examples of discrimination and which ones are prohibited by law. No Directives were given about the consequences of infringement of the prohibition of discrimination. The definition of discrimination, and within this, the definition of indirect discrimination[3] was not conceptually stipulated.

In procedures implemented due to violation of the prohibition of discrimination, the burden of proof poses a further problem. In most cases, the victims of discrimination could only initiate a civil procedure based on the violation of inherent rights[4]. In civil procedures the party, in whose interest it lies to see those facts verified by the court, shall prove the decisive facts of the case.[5] This means that we had to prove that our client was not admitted to a bar, disco, etc., or was not allowed to move into the main street of a settlement, due to his roma origin. As discrimination is not usually carried out openly, but in some hidden form, we had an extremely difficult task in carrying out legal procedures. A discriminating pub owner did not openly state that romas couldn’t entertain themselves in his establishment; instead he said that there is an exclusive party going on. Likewise, if a settlement did not want romas to live in their vicinity, they claimed that there are no houses, or building sites for sale. We have lost several cases due to the fact that we had to bear the brunt of proving certain facts that were impossible to do. [6]

The Equal Treatment Act that came into force on January 27^th 2004 introduces several new institutions, which provide effective remedies for the above-mentioned problems. With respect to the conceptual definition of discrimination, the law distinguishes direct[7] and indirect discrimination[8], harassment[9], illegal segregation[10], and instruction to discriminate and victimization [11]. With respect to the burden of proof it stipulates that in procedures initiated due to violation of equal treatment, the party that suffered the infringement of its rights has to prove that the person or group suffering the infringement of rights has suffered  and that at the time of the infringement of its rights the person or group suffering discrimination was – in fact or presumably – characterised by one of the characteristics defined in the law. If this is successfully proved, then it is up to the other party to prove that it had acted in accordance with, or with respect to the given legal relationship was not obliged to uphold the requirement of equal treatment. [12]

The law sets forth the requirement of equal treatment, and defines the terms of the field. Thus is stipulates that in the fields of employment, social security and healthcare, housing, education and the access to goods and services what possible forms of behaviour are prohibited by the regulation. [13]

Based on the regulation provided for by the law an administrative body with national competence was established in February 2005. This body is responsible for the monitoring of the prevaileance of equal treatment. The Equal Treatment Authority (EBH hereafter) is obliged to consider pleas submitted to it and to come to a decision with a much shorter notice than judicial acts[14]. In this respect, the case of the party suffering injury receives judgement faster than through litigation. At the same time the Authority can only impose a fine[15] if it establishes the infringement of the requirements of equal treatment. If the plaintiff wishes to pursue compensation for the humiliation caused, he still has to turn to the court. The establishment of the Authority is also significant because while previously legal redresses through administrative procedures could only be claimed in case of labour and so-called entertainment discrimination[16], the competence of the EBH includes the areas listed in the law, i.e. education, housing, healthcare, etc. Contrary to the court, the Authority will probably handle the cases of discrimination more professionally, as its work will be aided by a group of experts. [17]

With respect to the ETA we would like to discuss one more issue. The regulation introduces the so-called instrument of actio popularis claim, which means that the Public Prosecutor, as well as the EBH and any social and interest representation organisation, may bring a lawsuit for the infringement of inherent rights or a labour lawsuit if the principle of equal treatment is violated, provided that the violation of the principle of equal treatment was based on a characteristic that is essential feature of the individual, and the violation affects larger group of people that cannot be accurately determined. [18]

We could go on writing about the new law, and with time we will also be able to see where it should be amended, but in our present study – through practical examples – we wish to illustrate the development of the situation of minority rights protection within the legal regulations. Although complaints from all areas of life are arriving to our Office, for this study we have selected our examples from 2 large fields: employment and public services.