Before dealing with the possibilities and the methodology of the application of situation testing in Hungary, it is worth summing up the legal provisions related to the ban on discrimination
The two most important legal sources in the domestic legal system for the prohibition of discrimination are the Constitution and the so-called Law on Equal Opportunities (ETA) which came into force on 27 January 2004. Although discrimination had been prohibited by the Constitution before[1] and almost all the sectoral laws contain regulations related to this ban, enforcement of the rights of victims of discrimination was very problematic. The accurate and consistent definition of concepts was missing from the legal system, while the existing and inaccurate regulation did not offer adequate legal instruments to remedy the breaches of rights or to sanction the offenders. The new Law strives to standardize and complete the sporadic regulations prohibiting discrimination. At the same time it is with regard to the Council Directive 2000/43 (implementing the principle of equal treatment between persons irrespective of racial or ethinc origin) adopted in June 2000 and the Council Directive 2000/78 (establishing a general framework for equal treatment in employment and occupation).
The new law brought advance in many aspects compared to the former situation: it offers, inter alia, the precise definition of direct and indirect discrimination, defines harrasment, segregation and victimization, provides for the possibilty of positive action, and attempts to outline the aspects that are to be taken into consideration in relation to these matters. Other important elements of the law are the so-called popularis actio claim and the division of burden of proof.
The concept and types of discrimination are defined by the Act as follows:
Direct discrimination: direct discrimination shall be constituted by any action as a result of which a person or a group based on its real assumed sex, reacial affiliation, religion, health condition etc. is treated less favourably than another person or group in a comparable situation.[2]
Indirect disrimination: an action not deemed as direct discrimination and apparently meeting the requirement of equal treatment is deemed as indirect discrimination if it puts persons or goups specified in the ETA (Article 8) in a siginificantly disproportionately disadvantageous situation compared to people or grup in a comparable situation.[3]
Harrasment: harrasment is a conduct violating human dignity that is related to the relevant person’s characteristic defined in ETA, with the purpose or effect of creating an intimidating, hostile, humiliating or offensive environment.[4]
Segregation: segregation is a conduct that separates persons or groups from others on the basis of characteristics defined by the ETA without reason that has -according to objective consideration - a reasonable ground.[5]
Victimization: victimisation is a conduct that causes infringement, is aimed at causing infringement, or threatening with infringement, against a person making a complaint or initiating procedures because of a breach of the principle of equal treatment, or against a person assisting in such a procedure, in relation to these acts.[6]
The scope of the ETA
The scope of the ETA is fairly wide. Its personal scope covers all state organs, local councils and such organs that perform public tasks or exercise public authority; this includes schools and universitites maintained by the state, persons and institutions providing social and child protection services, museums, libraries, public community centers, voluntary mutual insurance schemes, private pension schemes, health care providers, political parties and other organs funded from central budget.[7]
One of the most sensitive parts of the ETA is the stipulation of the personal scope of prohobition of discrimination in relation to private actors. The legislator provides an exhaustive enumeration of those cases in which private actors are also obliged to respect the requirement of equal treatment. Apart from the realtions mentioned above, the scope of the ETA extends to the following relations irrespective of the parties of the relation concerned:
The following are expressly excluded from the ETA’s scope: family relations, legal relations between relatives, denominational legal entities’ legal relations directly related to their religious activity, internal operations (legal relations concerning membership issues) of NGOs, legal entities.
|Exceptions
Exceptions under ETA mean those reasons to which a person falling under the scope of the ETA may refer in order to apply different treatment without acting unlawfully.
Basically, there are three kinds of exemptions: 1) general exemption clause; 2) special exemption clauses; 3) positive action.
§ General exemption clause: The principle of equal treatment is not violated if the action based on a protected characteristic is found by objective consideration to have a reasonable gorund directly related to the relevant legal relation.[9] (e.g. only those may work as professional drivers who meet the suitability requirements related to health condition. Therefore those cannot claim direct discrimination based on health condition who are not recruited as bus-driver for having visual impairment.)
§ Spacial exemption clauses: In certain fields there are several such relations in case of which it should be examined again and again whether the difference in treatment falls under the general exemption clause, that is whether the differentiation has a reasonable ground by objective consideration or not. In order to avoid that it becomes necessary to put forth special exemption clauses apart from the general one. For example in terms of employment the ETA provides that „the principle of equal treatment is not violated if differentiation arises directly from a relgious or other ideological conviction, or national or ethnic origin fundamentally determining the ethos of the organization and if the differentiation is based on justified, proportional and genuine occupational requirements related to the nature or conditions of the given employments pursuit”.[10] This extremely intricately drafted provision is aimed at ensuring that denominational schools may require from their employees the respect or excercise of a certain religion. It is up to the jurisdiction to elaborate to which part of employees this provision applies. While a catholic school may obviously expect from a religion-teacher to profess oneself catholic, it is not for sure that the same requirement applies to a physical education teacher. And should someone not be recruited by the same educational institution as a cleaner for being a Calvinist, he/she could presumably succesfully allege the breach of his/her right to equal treatment before the competent authorities
§ Positive action: The measure aimed at the elimination of inequality of oppurtunities that exists based on an objective assessment of an expressly identified social group is not deemed as a violation of the principle of equal treatment if it is based on an Act, on a government decree based on on Act, or on a colective contract effective for a definite term or until a specific condition is met.[11] Indeed, this is nothing else than the legal wording of what is commonly called „positive discrimination” in Hungary. In terms of the measure aimed at eliminating the inequality of oppurtunities the ETA puts forth that it „shall not violate fundamental right, shall not provide unconditional advantage, and shall not exclude the weighing of individual circumstances”.[12] This means that no such scheme may be set up in which of a male and a female with the same qualification and years of practice automatically (that is by providing unconditional advantage without weighing the individual circumstances) the female candidate’s recruitment is obligatory for the sake of improving the proportion of female empolyees within a certain line of profession.
The enforcement of the principle of equal treatment in different fields
To ensure the implemetation of the princinple of equal treatment, the ETA regulates the following fields: employment[13]; social protection and health care[14]; housing[15]; education and training[16]; access to goods and services which are available to the public[17].
The Equal Treatment Authority
The enforcement of the requirement of equal treatment is contolled by the Equal Treatment Authoriy, a central administrative organ operating at national level.[18] Pursuant to the ETA the Authority may not proceed if a procedure has been initiated before another administrative body for the same reason between the same persons.[19] The Authority may not examine the procedures or decisions of the Parliament, the Constitutional Court, the President of the Republic of Hungary, the National Audit Office, the Parliamentary Commissioners for human rights, ethnic and national minorities and data protection, the courts and public prosecutors.[20] The Authority shall proceed in accordance with the provisions of Act on the General Rules of Public Administrative Procedure and Service[21] and the government decree on the Detailed Rules of the Procedure of Equal Treatment Authority (ETAD)[22]. The Authoriy shall make a decision on the merits of the case within 75 days after the submission of application or the ex officio initiation of the procedure. The decision shall be made in a fast track procedure if the application concerns persons under 14 years or the procedure has been initiated by the Parliamentary Commissioner or the prosecutor. In the procedures initiated for the breach of the requirement of equal treatment social or interest representation organizations may act as representatives. [23]
In case the Authority establised the infringement of the requirement of equal treatment it may
The above-mentioned sanctions shall be determined by taking into consideration all the circumstances of the case, the number of those affected by the violation of law, the consequences of the violation of law, the duration of the situation constituting a violation of law, the repeated violation of law and the financial standing of the person or entity committing such a violation.[24]
The judicial review of the Authority’s decision is possible. The lawsuit falls under the authority and exclusive competence of the Metropolitan Court.[25]
The claims arising from the breach of requirement of equal treatment may be enforced in the course of procedures regulated by the ETA and other sources of law, especially in the course of lawsuit for the infringement of inherent rights, labour-related claims, the procedures of Consumer Inspectorate, Labour Inspectorate and authorities proceeding in case of petty offences.[26]
In the course of procedures launched due to the breach of requirement of equal treatment social and interest representation organisations and the Authority may engage on behalf of the victim on the basis of the victim’s authorization unless stipulated otherwise by the law. In the course of administrative procedures initiated due to the breach of requirement of equal treatment the social and interest representation organisations are entitled to the rights of the clients (concerned party). [27]
In the course of procedures launched due to the breach of requirement of equal treatment the injured party or the organisation entitled the bring a popularis actio claim must prove that
a) the injured party or group has suffered disadvantage, and
b) the injured person or group possessed – de facto or to the assumption of the perpetrator – the characteristics specified in Article 8 of ETA.
In case this has been proven the other party has to prove that
a) it observed, or
b) in respect of the legal relationship concerned was not obliged to observe
the requirement of equal treatment.[28]
Popularis actio claim
The prosecutor, the Authority or any social or interest representation organisation may - due to the violation of the requirement of equal treatment - bring a lawsuit for the infringement of inherent rights or enforce a labour-related claim before the court, if the violation of the requirement of equal treatment was based on an essential personal characteristic and the violation of law that affected a large, accurately undeterminable group of persons.
In the course of popularis actio claims the damages and fine to be used for public purposes shall be payed to the central budget.
[1] In terms of Article 70/A. (1) 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 etc. According to Paragraph (2) any discrimination described in Paragraph (1) shall be severely punished by law.
[2] Article 8 of ETA
[3] Article 9 of ETA
[4] Article 10 (1) of ETA
[5] Article 10 (2) of ETA
[6] Article 10 (3) of ETA
[7] Article 4 (a) – (m) of ETA
[8] Article 5 (a) – (d) of ETA
[9] Article 7 (2) of ETA
[10] Article 22 b) of ETA
[11] Article 11. § (1) a). of ETA. Article 11. § b) provides for a special positive action in terms of political parties in order to promote the participation of the members a distadvantaged groups in the political activities.
[12] Article 11 (2) of ETA
[13] Article 21 - 23 of ETA
[14] Article 24 – 25 of ETA
[15] Article 26. of ETA
[16] Article. 27 – 30 of ETA
[17] Article. 30. of ETA
[18] Article 1 (1) of ETAD
[19] Under Article 12 of ETA a procedure can be initiated before the Consumer Inspectorate, Labour Inspectorate or Petty Offence Authority for the breach of the requirement of equal treatment. However, in terms of Article 15 (3) in this case the Authority may not proceed.
[20] Article 15 (6) of ETA
[21] Act CXL of 2004
[22] Government Decree No. 362/2004. (XII. 26.)
[23] Article 18 (1) of ETA
[24] Articles 16 (1) a-e), (1), (3), (4) of ETA
[25] Articles 17 (1), (2), (3), (4) of ETA
[26] Article 12 of ETA
[27] Articles 18 (1), (2) of ETA
[28] Articles 19 (1), (2) of ETA