Abuse
of Official Powers
(Mrs.
Bertalan N. and Jenő Sz. – Gy. village)
The case of Mrs. Bertalan Nagy
In 2001, the home of Mrs.
Bertalan N., a Roma woman, was severely damaged by floods. On the basis of
Government Decree No. 1033/2001. (IV. 12) on the reconstruction of settlements
in Szabolcs-Szatmár-Bereg County damaged by the floods of the Tisza river, the
woman– who was raising six children on her own –was entitled to receive
governmental funding for purchasing a home either in her place of residence,
village J., or in another settlement of her choice. Mrs. N. decided to purchase
a house with three rooms, owned by Csaba and Olga K. in the neighbouring
village Gy. When the villagers learnt that a Roma family was to move into the
house that was situated on one of the main streets of their village, they made
threats to both the sellers and the buyer of the house in question. Instead of
attempting to calm the villagers down, the mayor and the notary of the
settlement took the lead in expressing this anger and organised a village
meeting, which culminated in an atmosphere of hatred. Due to the protest of the
locals, threats made by the neighbours, the intervention of the local mayor and
notary, and the passivity of the county office of public administration, Mrs.
Bertalan N. was prevented from being able to move into the village. Instead of
receiving the HUF 7,000,000 compensation she was entitled to in order to pay
for the house, Mrs. Bertalan N. was given a ruinous apartment worth HUF
3,000,000 on the outskirts of town V.
Csaba and Olga K. purchased their house in
Gy. village in 1999. They had moved there from the Ukrainian town of
In light of the above, Csaba K. and his
wife had long considered moving out of the village and were therefore happy to
sell their house to Mrs. N. Once she arrived in the village, however, villagers
started to spread gossip claiming that Roma flood-victims of village J. planned
to move to their village in large numbers. The villagers started to collect
signatures to protest against the alleged arrival of Roma, and one villager
threatened Mrs. N. that he would set her house on fire if she moved into the
village. On one occasion, her future neighbour, Béla B., with a hack in his
hands, threatened the woman to set the house on fire if she bought it, and he
also made derogatory remarks about her Roma origin. Later the neighbour also
threatened Mrs. and Mr. K., saying that, if they sold the house to the Roma
family, he would kill them both and would set his bloodhound on their children.[2]
Despite the threats, on
In the meantime villagers repeatedly yelled threats towards the
members of the K. family, calling them “dirty Russians” and stating that they
were not allowed to sell their house to Gypsies.
Both Mrs. N. and those selling the house
repeatedly asked for the assistance of the local representatives of the County
Office for Disaster Prevention and the local representative of the Ministry of
Interior due to the threats they received from the villagers, but to no avail.
Despite the growing protest of the locals,
on 10 August 2001, the parties
signed a final contract of purchase, countersigned by an attorney, for the
amount of HUF 5,7 million as established and accepted by the counsellor of the
Ministry of Interior. The contract was to be validated by the subsequent
approval of the County Office of Public Administration, following which, the
money could have been transferred to the sellers. In the office of the
attorney, the parties handed over the contract of purchase to the county
commissioner for flood victims, and, with the assistance of the counsellor of
the Ministry, the parties commissioned him to deliver it to the head of the
County Office of Public Administration in person. The mayor and the notary of Gy. then appeared at the attorney’s house, and
learnt that, despite the threats, the contract had been signed.
Later that day, a public forum was held in
the mayor’s office. According to the mayor, the forum was initiated by the
villagers. A number of villagers claimed, however, that the notary had
commissioned people doing public works to deliver letters of invitation to the
local inhabitants. According to the participants, the public forum was attended
by at least two hundred people.
Meanwhile, at around 7 pm, five men
arrived at the house of Mr. and Mrs. K. with a car belonging to the mayor’s
office. The men demanded that the couple attend the meeting and tear the
contract into pieces in front of the villagers, so that they could not sell
their house to Gypsies. When the couple refused to comply with the request, the
five men left, threatening Mr. and Mrs. K. that in ten minutes time they would
return together with all the other villagers who would set the house on fire so
that it could not be sold. Csaba and Olga K. called the police to ask for help,
but the police officer on duty told them that before she could proceed, she
needed to call the mayor of Gy. to find out whether they were telling the
truth, otherwise she would initiate a procedure against them for malicious
accusation. A few minutes later the mayor appeared at the house in the company
of another man, and told the couple in front of their children that they were
bad parents as they did not want to protect their children. The mayor also said
that he was unable to stop the villagers and could not guarantee the physical safety
of the family. He asked the couple to waive the contract of purchase, as
Gypsies were not allowed to buy houses in Gy., and he also stated that as long
as he was the mayor of the village, no Gypsies would live on the main street.
The couple asked the mayor again to protect their family, but the mayor left
the house suggesting to the couple that they reconsider their decision.
Upon closure of the village meeting at
approximately 11:30 pm, an unidentified person arrived at the house of the K.
family, damaged the gates of their house with large strokes of an axe and
shouted abuse at them saying: “Dirty
Russians, you will be killed!” The parents and their children were very
scared and the little girls suffered from shock.
The next day Olga K. went to the mayor’s office and told the mayor about what
had happened to her family during the night and asked the mayor to protect her
and her family. The mayor told her that he knew about the incident, but
suggested to her not to report it to the police because none of the villagers
would support her with witness statements. He also said that the local council
would fix her gate. The mayor then reminded Mrs. K. that he had warned her and
her husband the day before to reconsider their decision.
Despite the mayor’s advice, Olga K.
reported the incident to the V. Town Police Station. However, upon finding that
the reported act did not amount to a criminal offence, the police terminated
proceedings. It instead initiated a procedure for a petty offence, but the
notary of Gy. village proceeding as the authority in the case terminated the
procedure on the basis that the identity and place of abode of the offender
could not be established.
Some villagers continued to threaten and
verbally abuse the K. family, as a result of which the parents took their
children back to Beregovo, Ukraine. On 13 August 2001 Csaba K. sent a written request to the mayor to protect his
family. He also informed the head of the County Office of Public Administration
and the Disaster Prevention Department of the Ministry of Interior about the
situation in the village.
On 15 August 2001, while Csaba and Olga K.
were still in the Ukraine, Mrs. Bertalan N. was called to the mayor’s office
for an appointment with the mayor and the notary of the village. The
ministerial counsellor, the mayor and vice-mayor of J. village, a member of the
minority council of J. and the representative of the minority council of Gy.
were all present at the mayor’s office. They asked the Roma woman “not to buy the house from “those Russians”,
because they were in fact Ukrainians and therefore they could not sell the
house which was actually under sequestration.”
The parties soon learned of the fact that
two days before Mrs. Bertalan N's appointment – and without informing the K.
family – the notary of Gy. issued a decision placing the real estate in
question under sequestration due to an alleged debt of communal tax in the
amount of HUF 4,000. The notary had also contacted the Office of the Registry
of Title Deeds of V. town in order to have the sequestration registered there;
a fact which was only relayed to the K.
family at a later stage. In only three days
the sequestration was entered into the registry of title deeds.[3]
Mrs. N. was also told in the mayor’s
office that the Council would assist her in finding a house for herself if she
decide not to buy Csaba and Olga K.’s house. In support of this promise, Mrs.
N. was given HUF 200,000 claiming that it was a form of aid and, although she
cannot read or write, she was also given a paper to sign. It was in fact a memo
terminating with the following sentence: “Gizella
B.[4] of
village J. rescinded from the purchase of the house of Csaba K. of Gy.
village.”
Upon their return from the Ukraine, Mrs.
N. told the couple that she had been to the mayor’s office of Gy. where she was
told that she could not buy the house because it was under sequestration, and
that she was also made to sign a paper.
In an effort to clarify the situation, Olga K. went
to see the mayor. In response to her question, the mayor told Olga K. that "perhaps in their own country they
could sell their house to anyone they liked, but here in Hungary things were
different. The mayor said that in this country Hungarians don’t sell their
houses to Gypsies, and, if Olga K. really considered herself Hungarian, she
would know that such a sale would be considered a shame". Olga K.
asked the mayor to write these arguments down for her, but the mayor refused
her request and said that "it was an
unwritten rule that in Gy. Gypsies can only move to side streets, but not to
the main ones". The mayor further told Olga K. that "she should not create new rules for the
village, and that if she disliked the local rules, she was free to leave the
village instead of siding with the Gypsies".
On 22 August 2001, Olga K. contacted the Ombudsman for National and Ethnic Minorities
and requested the office to investigate the unacceptable procedures performed
by the mayor’s office of Gy.
In the evening hours of 27 August 2001, the mayor and the notary visited the
home of the K. family again. During the conversation, the K. children were in
the kitchen recording the entire conversation on a tape. On the basis of this
secret recording it can be established that the mayor and the notary attempted to
convince the couple to rescind their contract and to not sell their house to
the Roma woman. The notary said, among other things, that "their neighbours would be ashamed if someone sold a house to
Gypsies'. He drew Mr. and Mrs. K‘s attention to the fact, that, if they
sold their house to Gypsies, other villagers might decide to do the same thing,
in which case the Roma population of the village would suddenly rise, which was
not desirable. Both the notary and the mayor explained that Mr. and Mrs. K. should
be more considerate of the local community, which had no wish to see Gypsies
moving onto their main street.
On 27 December 2001, Csaba K. received the
decision of the local notary terminating proceedings concerning the incident of
dangerous threat and the damage done to the gate of his house on the night of
10 August 2001, as the perpetrator could not be identified.
As a result of all these events, Olga K.
had a nervous breakdown. She had an appointment with a neurologist on 12
September 2001, when she was
diagnosed with depression and panic-attacks. Due to her illness, Mrs. K. became
unemployed on 21 November 2001. Ever since, the family has been unable to move from Gy. village.
Finally the County Office of Public
Administration counter-signed a contract of purchase for Mrs. Bertalan N. for
the purchase of an apartment on the outskirts of V. town for the value of HUF 3
million. The apartment was in an extremely bad condition: its walls were
cracked, its ceiling was leaking and only one of the rooms had heating
facilities in it. Out of the HUF 7 million that the government was to pay her
earlier, 4 million remained in the central budget. Thus Mrs. N’s hope to bring her six children up in humane conditions
was severely curtailed.
The mayor of Gy. gave an interview to the Hungarian Public Radio on 2 February
2002. In the course of the
interview, the mayor stated that: “Yes, I
am telling you, we don’t want any more families moving into our village who
want to live off our money… It is simply frightening that there are people in
Hungary who have not worked for a day of their lives and are still allowed to
buy a house for over HUF 7 million. I,
myself, am also of the view that people who dare to hang their laundry on their
fence in the 21st century, should move to the side streets.”
On 1 February 2002, the Parliamentary Commissioner for National and Ethnic Minorities
issued a position paper on the case. The ombudsman established that “by
requesting the parties concerned to rescind their contract, the mayor and the
notary of Gy. village transgressed their official competence and arbitrarily
interfered with the personal autonomy of the citizens concerned which is
protected and guaranteed by the Constitution, and by virtue of this, caused a
significant infringement of their rights and rightful interests.”
The ombudsman found that the council’s procedure violated the applicants’
right to property guaranteed by Article 13 paragraph (1) of the Constitution
and their right to freedom of movement as stipulated by Article 58 paragraph
(1) of the Constitution. Furthermore, the ombudsman found that the mayor and
the notary violated Article 70/A of the Constitution providing for the
prohibition of discrimination. On the basis of the above, the ombudsman
prepared a recommendation to the councillors of Gy. village to draw the
attention of the mayor and the notary to refrain from similar acts which are
both legally and morally objectionable, and to pass a resolution in which they
apologise to Olga and Csaba K. and to Mrs. Bertalan N. for the grievances
suffered. The councillors discussed the ombudsman’s recommendations and
accepted them in a resolution dated 8 March 2002.
*
NEKI filed a criminal and a civil suit in
the case. Our submissions were described in detail in White Booklet 2002.
On 28 April 2002, NEKI filed a criminal complaint with the
Szabolcs-Szatmár-Bereg-County Prosecutors’ Office with the assistance of
attorney József Kárpáti against dr.
Levente K., notary of Gy. village, and László H., mayor of Gy. village, for
continuous abuse of their official powers. This abuse stemmed from their role
as accomplices which is prohibited by Article 225 of the Criminal Code,[5] as
well as against unidentified perpetrators for violence against a member of a
national, ethnic, racial or religious minority as prohibited by article 174/B
of the Criminal Code.
In our complaint we drew the attention of
the Chief Prosecutor to the tendentious, persistent and cruel process that led
to a situation in which the parties could not complete their contract of
purchase. We argued that it was the duty of all responsible officers of the
Local Council to prevent such a torrent of life-threatening menaces and
humiliating remarks by villagers. Instead, these very officers maintained and
assisted in the permanent infringements, in party by their passivity and in
part by their active acts of exclusion committed against the Roma lady and the
Ukrainian-Hungarian couple.
Despite the fact that investigation in
cases of violence against a member of national, ethnic, racial or religious
minorities as stipulated by article 174/B of the Criminal Code is within the
sphere of competence of the county police, the investigation in question was
carried out by the V. town police. Moreover, the police merely investigated the
suspicion of abuse of official powers. As our clients repeatedly complained
about the V. Town Police Station that has failed to proceed in the case, NEKI
commissioned attorney Emese Balogh to represent the clients.
On 23 February 2003, the V. Town Police
suspended the investigation on the grounds that commitment of a crime could not
be established. NEKI submitted a complaint against the decision on 11 March
2003. In our complaint, we set forth that the investigating authority failed to
consider that the notary of Gy. placed the real estate of the K. family under
sequestration two days after they had signed a contract of sale with Mrs. N,
which he later annulled without requesting the family to pay their alleged
debt. The police also failed to consider a witness statement of a person who
was present at the house of Csaba and Olga K. when the notary and the mayor
attempted to convince the family not to sell their house to Mrs. N, a Roma
person. It also disregarded the witness statement of a public worker, who
participated in the distribution of invitations to the village meeting, and the
tape recording submitted by NEKI as a piece of evidence. The town prosecutor’s
office rejected our complaint on 28 March 2003.
On 29 May 2002, on the basis of a power of attorney signed by Mrs. Bertalan N.,
Olga K. and Csaba K., and upon request of NEKI, attorney József Kárpáti filed a
submission before the Szabolcs-Szatmár-Bereg County Court against the Local
Council of Gy. village, its notary and mayor as well as against Béla B.,
neighbour, for the damage caused in an administrative procedure and for
violation of civil rights, and requested the Court to award compensation.
NEKI requested the County Court to
establish that, by their negligence in not stopping the hysteric atmosphere in
the village, by unlawfully requesting the plaintiffs to rescind from their
contract of purchase in order to prevent realisation of the sale of the house
in question, the notary and the mayor - proceeding on behalf of the Local
Council - violated the plaintiffs’ civil rights. NEKI further requested the
Court to establish that the plaintiffs’ right to corporal integrity and health,
their right to personal honour and human dignity as well as their right to
freedom of movement and freedom to choose their place of residence had been
violated. We also claimed that the plaintiffs’ civil rights with regards to the
prohibition of discrimination on the basis of their national or ethnic origin
as well as on the basis of their social origin had also been violated.
Furthermore, we requested that the Court
establish that the unlawful menacing act of Béla B., as established by decision
No. 181/2001/7. of the V. Town Court, violated the plaintiffs’ civil rights
relating to the prohibition of discrimination on the grounds of their national
or ethnic origin and also violated their right to personal honour and human
dignity.
We requested the Court to prohibit the
defendants from committing similar acts in the future, to obligate them to
publicly apologise to the plaintiffs and allow the plaintiffs to publish the
apology in a county paper at the expense of the defendants.
On 6 December 2002, attorney József Kárpáti extended NEKI’s claim in the case before
the Szabolcs-Szatmár-Bereg County Court to include the County Office of Public
Administration, as we came to the conclusion that the County Office actively
participated in the process that resulted in the frustration of the sale of the
real-estate in question. Would the County Office of Public Administration have
counter-signed the contract of purchase dated 10 August 2001, and would it have
transferred the sales price of the house to the K. family, Mrs. Bertalan N.
could have moved into the house, despite the protest of the villagers and the
Local Council. In our view, the Office should have informed the parties
involved why it had not accepted and not counter-signed their contract of sale,
thus allowing the parties to apply for legal remedies against the decision.
NEKI was of the view that the County
Office of Public Administration committed an omission in its procedure, which
resulted in the plaintiffs not being able to decide whether or not they would
like to realise the purchase of the real-estate for a price, which was
acceptable to them, as well as to the Office. Due to this omission the contract
fell through and Mrs. Bertalan N. was forced to purchase other (less suitable)
real estate.
Whilst the criminal and civil proceedings
have been in progress, both Olga K. and Mrs. Bertalan N. have contacted NEKI on
several occasions informing us that they were under extreme pressure in the
village. Mrs. Bertalan N. told us that she was regularly harassed and
threatened by the mayor and the notary of Gy. village who have applied all
means to convince her to withdraw her court submissions and her statements made
before the police authorities. On 11 November 2002, the legal representative of
the plaintiffs – who was commissioned by NEKI – called our office and told us
that the notary and the mayor appeared in her office with Mrs. Bertalan N. and
wanted the attorney to issue a document proving that Mrs. N. withdrew from the
lawsuits. Mrs. N. later told the attorney that the notary had harassed her for
days and then made different promises to her, would she withdraw her complaints.
Finally the two officials drove her and her sister to our attorney in Ny. city.
Presumably, witnesses were also harassed
in the village, since, during the procedure on first instance, every witness
who was summoned by NEKI and who, prior to the hearings, had been able to
describe the events to us in detail, made a statement claiming that he or she
had not seen and not heard anything, does not remember anything of what had
taken place in the village at the time in question, or gave a witness statement
contrary to his or her earlier one. There was one witness, who, during his
interrogation by the police, stated that he had participated in organising the
village meeting upon the initiative of the local notary, yet, in the courtroom
he started his statement by claiming that “what
I said to the police was not true”.[6]
On 10 February 2003, the Szabolcs-Szatmár-Bereg
County Court rejected NEKI’s submission.
*
The Case of Jenő Sz.
Shortly after we had lost our civil suit
in the case of Mrs. Bertalan N. on first instance and our complaint against
termination of the criminal procedure had been rejected, Jenő Sz. sought
assistance from our office. During the course of our fact-finding we learnt
that the man, who became homeless due to losing his family home in the floods,
also attempted to buy a home in Gy. village at approximately the same time as
Mrs. Bertalan N. As in her case, the mayor and notary of the village had done
everything in their power to prevent Mr. Sz. and his family to purchase a home
in the village. Even though the house which Jenő Sz. and his family intended to
buy was situated near the “Gypsy row” and not on the main street, it seemed
like the local authorities had different plans for the real-estate in question.
Indeed, the authorities wanted Mrs. Bertalan N. to buy that house so that she
would not have moved to the main street into the house owned by “the Russians”.
As
a result of the devastating floods, Jenő Sz. and his wife became homeless with
their five children. The wife was already expecting their sixth child, she was
in the last days of her pregnancy, therefore the family urgently needed to find
a new home. In August 2001, they found a house offered for sale by Endre T. and
his wife across the “new Gypsy row” of the village. The couple liked the house
a lot and wanted to buy it immediately. They agreed on the price with the
sellers, therefore, seemingly, there was nothing to prevent them from signing a
contract of purchase.
Yet,
following their negotiations, Mrs. Endre T. visited Mrs. Sz. and told her that
the notary of Gy. village went to her house practically every day, and tried to
convince her and her husband – sometimes kindly, other times with threats – not
to sign the contract with the Sz. family. However, she assured the worried
mother, that given that Mrs. Sz. was in the last stages of pregnancy, she and
her husband would still proceed with the sale.
The
next day, Mr. and Mrs. T. were in the mayor’s office where they met the mayor,
the notary and the head of the Roma minority council who told the couple, that
Gypsies were not allowed to move into the village and that they were therefore
could not sell their house to Mr. and Mrs. Sz. The couple was told by the
officials that “dirty Gypsies
would not move here”. Given that they could not
convince the couple with threats, the officials then tried to convince them
emotionally, suggesting that “those
people should not move to their village, that would only augment the problems
and conflicts which already existed among the inhabitants.”
Despite
the threats, the parties signed a contract of sale on 21 August 2001. At this
point Mrs. Sz. was already in hospital, expecting to give birth at any moment.
She even had to sneak out of the hospital to sign the contract. Then they sent
the signed contract to the County Office of Public Administration, which
approved of the transaction.
After
they concluded the contract of sale, Jenő Sz. and his family continued to
receive threats. As a result, the father decided that he did not wish to risk
the physical safety of his family and therefore rescinded from the contract of
purchase. On 12 September, he contacted the lieutenant colonel of the County
Office of Disaster Prevention and asked for his assistance in finding a house
in another village for his family. The lieutenant colonel informed him that, in
order to do that he should obtain a statement signed by the sellers, in which
they express their intention to rescind the contract, even though the lawful
solution would have been to annul the contract by mutual agreement. Upon Mr.
Sz’s request, the lieutenant colonel even phrased the statement for him, in
which – as he later told in his witness statement – he named Mr. and Mrs. Endre
T. as those, who prepared it.
Since
Mr. and Mrs. Sz. were afraid that the T. couple would not want to rescind from
the contract, they simply completed the above statement with the necessary data
and submitted it with the local council, asking the authorities to forward it
to the office of public administration. Thus they practically annulled the
contract, since the office of public administration considered the parties to
have agreed on it. Yet, the potential sellers were not notified about the
annulment, and were patiently waiting for the sales price to arrive to their
bank account.
After
a while, suspected that there might have been a problem with their contract,
Mr. and Mrs. Endre T. approached the office of public administration, where
they were told that the contract had been annulled with their agreement. This
was when they learnt about the falsified statement submitted by Mr. and Mrs.
Sz.
At
this point, Endre T. filed a report with the police, who launched a procedure
against Jenő Sz. and his wife for forgery of a private record. It was easy for
the police to clarify that the crime was committed by Jenő Sz. and his wife; a
fact which the couple did not even deny. Thus, on 11 April 2001, the V. town court
passed a decision without holding a hearing and ordered the couple to pay a
fine. The Sz. couple did not appeal the decision, thus it entered into force.
In
the meantime, Mr. and Mrs. Sz. found other real estate in Ó. village, which was
in a worse condition that the previous one, but also cheaper. According to the
couple, they purchased this house out of necessity, since they were expecting
another child and needed shelter for their family before the winter arrived.
Later, Endre T. and his wife managed to sell their home for HUF 500,000 less
then Mr. and Mrs. Sz. had originally offered for it. In the end, both families
were forced to enter into a less favourable transaction, but no Gypsies moved
into Gy. village.
The
events did not come to an end as yet. On the basis of information given by the
police, Endre T. and his wife filed a submission with the court to request
compensation for the damages they suffered as a result of a criminal act. They
presumed that the court would clarify who exactly had been responsible for the
frustration of their contract and for their loss of HUF 500,000. They had no
legal representative, therefore they were unaware of the fact that they had in
fact sued the Sz. family to reimburse their loss.
Jenő
Sz. contacted NEKI when he and his wife found out that Endre T. and his wife
sued them to pay HUF 500,000. They sought NEKI’s legal assistance in the case,
since they considered that they were also victims in the case, victims of the
intention of the notary and the mayor of Gy. village to prevent Roma moving in
the village, or at least onto its main street. Given that they asked for our
assistance before the second instance hearing in the civil suit of Mrs.
Bertalan N. and Csaba and Olga K. was to take place, we were of the opinion
that the data and evidence we could obtain in Jenő Sz’s case could also be used
as evidence at that court hearing.
At
the hearing of Jenő Sz’s case, our client was represented by attorney László
Bihary, while Endre T. and his wife arrived without a legal representative.
Both parties claimed before the court that the notary and the mayor of Gy.
village was responsible for the damages at hand, since they were the ones who
applied all possible means to prevent that them from realising their contract
of sale. We proposed to the court to hear Olga K. as a witness, who explained
what exactly had happen to her and to Mrs. Bertalan N’s family. She revealed
the mayor’s and notary’s plan, according to which Endre T. and his wife should
not have sold their house to Jenő Sz. and his family, since the local
authorities decided that Mrs. Bertalan N. should move into that house. The
officials could have beaten two birds with one stone this way: no Roma would
have moved to the village’s main street, and the “Russians” would not have made
a profit by selling their house either.[7]
This way the village would have also ended up with one less Roma family, as by
not having a home there, Jenő Sz. and his wife would have had to move to a
different settlement.
The
mayor and notary who had been summoned by the court to appear as witnesses
excused themselves by claiming that they were unable to attend the hearing due
to some kind of pipe-laying works in their village. At this point, Mrs. Endre
T. told the court that all she and her husband wanted was to reveal the truth
in the case, and that they had no intention to financially destroy the “poor Sz. family and their children”. The
couple was convinced that the court would hold the mayor and notary responsible
for the events and their damages. Once the court clarified the situation for
them, Mrs. T. and her husband asked the court to suspend the procedure.
*
NEKI
attached the court records of this case to the appeal submitted in Mrs.
Bertalan N's and Olga and Csaba K’s case. In the appeal we argued that these
records proved that there were further witnesses to support our claim. They
also proved that the pogrom-like village meeting had indeed been organised by
the notary and the mayor of Gy. village, since, in their statements made before
the court Endre T. and his wife stated that a public worker had delivered them
an invitation to the “event”, which had been prepared in the mayor’s office.
The court records contained a number of other witness statements, which
supported the claims of Mrs. Bertalan N. and Csaba and Olga K.
Despite
the newly introduced evidence, on 9 September 2003, the Municipal Court of
Appeal upheld the first instance decision in the latter case.
On
2 December 2003 NEKI submitted a request for judicial review before the Supreme
Court. We proposed that the Municipal Court of Appeal uphold the decision of
the Szabolcs-Szatmár-Bereg County Court on the basis of facts which were
established by it erroneously, therefore its legal conclusions based on those
facts were also erroneous.
We set forth that the County Court’s finding,
according to which the office of public administration had no legal obligation
to inform the parties concerned that it had not accepted the sales price
included in their contract was contrary to the position taken by the Supreme
Court in its case No. BH. 1997/5.225. concerning damages caused in an
administrative capacity. In this statement the Supreme Court laid down that
damages caused in an administrative procedure are those caused by measures or lack
of measures taken during the exercise of executive power. Therefore we proposed
that the court proceeding on second instance upheld the first instance decision
concerning the role of the office of public administration in the case, without
having examined the nature of the legal relationship between our clients and
the office.
We also submitted that the courts have
erroneously interpreted the principle of discrimination and therefore drew an
erroneous conclusion with regards to whether or not the defendants’ acts had
amounted to discrimination; apart from direct discrimination, the prevalence of
indirect discrimination would also have had to be examined by them. Indirect
discrimination can be established if a seemingly neutral condition, provision,
measure or practice affects a certain person to a graver extent than it does to
other persons in a comparable position.
We argued that the proceeding courts had
unlawfully restricted the field of application of the prohibition of
discrimination to the prohibition of direct discrimination, and repeatedly
submitted that the chain of events, which have been proved by the plaintiffs,
had effected them in a severely disadvantageous manner in comparison to others,
therefore they suffered indirect discrimination.
In practice, discriminatory treatment most
frequently occurs in its indirect form, direct discrimination can only rarely
be detected. Pursuant to the Race Directive of the European Union[8]
- which is yet to be implemented in Hungary– "indirect discrimination shall be taken to occur where an
apparently neutral provision, criterion or practice would put persons of a
racial or ethnic origin at a particular disadvantage compared with other
persons, unless that provision, criterion or practice is objectively justified
by a legitimate aim and the means of achieving that aim are appropriate and
necessary".
We further submitted that, during
evaluation of the evidence before them, the courts also violated the principles
set forth in Decision No. BH. 1995.689 of the Supreme Court, according to which
in the examination of whether or not an act amounts to discrimination against
private persons, courts shall collate the circumstances of the case with the
interests of the parties involved. According to the decision, during deliberation
of evidence, courts shall logically deliberate the evidence and shall draw a
logical conclusion on that basis.
In sum, NEKI submitted that, on one hand,
the courts had violated the rules relating to deliberation of evidence. A
result of this was that they had established the facts of the case erroneously,
and had thus failed to apply the relevant provisions of the Constitution and
the Civil Code concerning the prohibition of discrimination. On the other hand,
we set forth that on the basis of the facts of the case, which the courts had
established erroneously, they had drawn an erroneous legal conclusion and
failed to consider indirect discrimination as a prohibited act.
On page six of its decision No.
2.Pf.20.522/2003/4. the Municipal Court of Appeal set forth: “given the ethnic composition of the
village, the villagers’ anger did not concern the ethnic origin of those who
intended to move to their community, but rather their lifestyle and their
opinion of it, which cannot be considered as unlawful discrimination.” We
are nonetheless convinced that the above conclusion of the court is unlawful
insofar as it identifies with the generalised schematic values of the village
community, according to which any Roma flood victim who would like to move there
must lead a condonable lifestyle.
Furthermore, the above conclusion also
contradicts the findings of the first instance court according to which “word has got around in village Gy. that
Roma flood victims of J. village planned to move to Gy. in large numbers (…).
People gathered at the meeting in order to protest against having Roma families
from J. village moving to their community and to prevent the K. family to sell
their house to a Roma family.”[9] Therefore
the conclusion of the second instance court - according to which the hostile
atmosphere in the village was not due to the ethnic origin of the people who
intended to move to the village, but rather due to their lifestyle - is indeed
erroneous.
We further proposed that the reasoning of
the second instance court, according to which the villagers had gathered for
the meeting in order to express their opinions was also erroneous. On page 6.
of its decision the Municipal Court of Appeal set forth that “… members of the community gave voice to
their opinions at the meeting, which cannot result in a violation of the
plaintiffs’ rights, especially if one considers the constitutional right to the
freedom of opinion.” This conclusion is incorrect given that the
constitutional right to the freedom of opinion can indeed be restricted in
order to protect other persons' civil and constitutional right to be free from
discrimination. While in our case the court paid due respect to the
constitutional right to the freedom of speech of the community and its authorities,
they fully disregarded the plaintiffs’ civil and constitutional rights.
The facts of the case as established by
the proceeding courts reveal that there was a general anti-Roma sentiment in
Gy. village, and the motivation behind the villagers’ acts – which were based
on their generalised opinion of members of the Roma minority group – was to
prevent free movement of the plaintiffs' by preventing them from moving to the
village. It is clear from the aforementioned findings of the first instance
court that the villagers did not organise the meeting only in order to express
their opinions as the second instance court stated, but they were lead by the
intention of unlawfully preventing other persons’ right to freedom of movement.
This intention clearly contradicts Article 58 paragraph (1) of the
Constitution, which provides that everyone - except in cases provided otherwise
by law - lawfully residing in Hungary shall have the right to the freedom of
movement and the freedom to chose one’s place of residence, including the
freedom to leave the residence or the country.
The courts in question drew a number of
rather curious conclusions concerning the activities of the local notary and
mayor as well. On page 5 of its decision the County Court set forth that “At 8 pm on 10 August the mayor acted under
the pressure of his fellow villagers when he went to the K. family's house in
order to find out about their real intention concerning the sale of their
house. After his visit the mayor returned to the village meeting and informed
the villagers that it was possible to ensure that no one would sell their homes
against the wishes of the community, but he warned that the local councillors
should first bring a resolution to that effect.”
The Municipal Court of Appeal interpreted
the same event the following way on page 3. of its decision: “The mayor and notary forwarded the request
of their fellow villagers to the plaintiff, which posed no legal obligation
towards the latter.”
The County Court further protected the
acts of the local authorities by the following statement on page 11 of its
decision: “Local publicity may include
the villagers’ gathering, even in the courtyard of the mayor’s office, in order
to discuss the events. There are no legal provisions prescribing what a notary
or a mayor should do in such a situation, or in what manner they should behave.
In the present case, both the mayor and the notary did what they considered to
be the best in order to somehow calm the overheated atmosphere. They did not
infringe the law by simply visiting the K. family’s house and talking to them,
whatever the subject matter of the conversation. The very reason of the visit
was to settle the high emotions which surrounded the case. It is obvious that
the notary and the mayor, in their official capacities, should not have
expressed their opinion concerning a sales contract between citizens, and they
should not have given in to the pressure of the crowd. However, their behaviour
did not cross the boundaries of a legal violation, from which persons may
legally be protected.”
The Municipal Court of Appeal considered
important to make note of the following: “The
second instance court wishes to note that whether the village meeting was
organised spontaneously or whether it was called together by the authorities
has no significant influence on the deliberation of the merits of the case.”
NEKI is of the view that the above facts and the
legal conclusions drawn by the courts on that basis clearly reveal the
application of a discriminatory procedure against the plaintiffs. It also shows
that the courts drew erroneous conclusions based on their erroneous approach to
the case. Both decisions suggest that in the given situation, the manner and
motivation of how the villagers expressed their opinion was appropriate. At the
same time, the decisions also suggest that the mayor and the notary had no
other means of solving the conflict apart from the mediation they allegedly did
concerning this allegedly lawful act of the villagers. Under the above logic of
both courts, the community is entitled to express extremist views and to behave
in a threatening manner towards others due to their constitutional right to
freedom of opinion. The courts also suggested that local authorities were
entitled to identify with such extremist views, and, on that basis, were
entitled to interfere with other persons' private life to an extent which
amounts to discrimination. NEKI is convinced that the second instance court was
mistaken in finding that whether or not the village meeting was organised by
the local authorities was of no relevance with regard to the merits of the
case.
In NEKI’s view the courts also
misinterpreted the meaning of discrimination. On page 13 of the County Court’s
decision the proceeding judge stated that “Csaba
and Olga K. do not belong to a minority, they belong the majority indeed. The
mere fact that they moved to the village from the Ukraine is of no importance.”
The court seemed to have disregarded the fact that members of the K. family
belong to a specific group of Hungarians, those who moved back to their home
country from abroad, in their case, from the Ukraine. This is a clearly
definable, homogenous sub-group of the population, therefore the prohibition of
discrimination is applicable to them in this respect, and the courts were
mistaken in considering them to be members of the majority.
On pages 13-14 of its decision the County
Court set forth: “even the fact, that the
K. family had only received child support following a court order passed in
that respect and after continuous pressure on behalf of the K.s concerning
enforcement of that order, cannot be considered discriminatory, given that the
heads of the local council wished to achieve that they would be able to
allocate the support once the K. children enrolled in the local school.” This
finding clearly suggests that the court identified with the intention of the
local leaders to unlawfully force parents to enrol their children in a school
other then their own choice. Yet, under Article 13 paragraph (1) of the Act on
public education, parents have the right to freely chose an educational
institution for their children, and, in the exercise of this right, parents are
entitled to chose the institution in accordance with their children’s abilities,
field of interest, religious or ideological conviction and their national or
ethnic origin. As such, the measure of the local leaders, which was approved by
the court, clearly violated the provisions of the Act. Local councils are not
entitled to enforce that children be enrolled in the local school by not
allocating a lawfully awarded social support.
Apart from arguing the fact that the K.
family belonged to a minority group, the court also argued that Mrs. Bertalan
N's Roma origin had nothing to do with the case. On page 14 of its decision the
County Court set forth that “Mrs.
Bertalan N. did not suffer any disadvantages due to her Roma origin as a result
of the acts of the 1-3rd degree defendants' Acts. To the contrary,
the authorities enabled her to enrol her children in the local school, and
awarded her an aid in the amount of HUF 200,000, even though she was not a
local inhabitant.” Strangely, the court did not even question what the
legal title was supposed to be for a local council to allocate “aid” to a
person who is not under its jurisdiction. In fact, there is no rational and no
possible legal title under which a poor local council could lawfully pay HUF
200,000 to a non-resident. Paying such an unusually high amount to a
non-resident cannot be interpreted otherwise under the given conditions, than
as an attempt on behalf of the local council to encourage Mrs. Bertalan N. to
rescind from her contract of purchase.
On the same page of the decision the first
instance court further elaborated its opinion with regard to discrimination: “discrimination on the basis of racial or
national origin cannot be considered in connection with her (Mrs. N.), given
that about half of the villagers who protested against her moving to the
village were also members of the Roma minority.” In this statement, the
court failed to consider that neither the Constitution nor the Civil Code
provides for an exemption from liability for a discriminatory act on the basis
of the perpetrator’s racial, national or ethnic origin. An act is not qualified
discriminatory on the basis of the perpetrators membership in a minority group,
but rather on the basis of its victim’s such membership, and on the basis of
whether such treatment is based on real and individual qualities of the victim,
or solely on his or her real or presumed membership in a minority group.
Finally, the second instance court added
the following observations to the above findings on page 6 of its decision: “… furthermore, it shall be kept in mind
that membership in a minority group is purely voluntary, only those persons may
be considered as members of a minority group who so declare, no one may be
considered to belong to a national minority against his or her will. On the
basis of the above the court found that the acts of the first degree defendant
did not amount to discrimination, since the plaintiff was not discriminated
against on the basis of her national origin.” Therefore the Municipal Court of Appeal was of
the opinion that the only persons that can be discriminated against are those
who declare themselves as belonging to a minority group, and, who inform others
about that prior to a discriminatory act. Otherwise, following the court’s
logic, how would one know whether his or her victim belongs to the Roma
minority or not? The carelessness of the court is also well reflected by the
fact that it kept referring to Roma ethnicity as “nationality”.
In our submission we further argued that
the court did not sufficiently evaluate the circumstances under which the house
of the K. family was placed under sequestration. We questioned the time and
circumstances of how the notary brought the above measure. First of all the
parties had signed a contract of sale on 10 August 2001. Immediately
afterwards, the notary had issued a notice concerning an otherwise questionable
communal debt. The notary’s decision concerning sequestration, which also
stated that no appeal was available against it was dated 13 August 2001, the
same day the notice about the communal debt was issued. According to the case
files, the documents were mailed to the K. family on the same day and inside
the same envelope. Even if the family would have indeed owed communal tax to
the local council, they would still have been unable to balance their debt before
sequestration would have been placed on their real estate.
Even though the notary issued a formal
decision on the sequestration which served as a basis for the Office of Title
Deeds to register it, the manner in which the notary proceeded suggests that
his aim was to make the sale of the real estate difficult.
In common terms, “sequestration” is
believed to mean that a piece of real estate cannot be sold, even though real
estates which are under sequestration can actually be sold. It is another curious
aspect of the notary’s procedure that in November, by which time the contract
of sale had obviously fallen through, the notary lifted the K. family’s house
from under sequestration without having had the family pay its communal debt.
This suggests that the notary issued a false public document in this respect.
NEKI is convinced that in the present
case, the manner and the circumstances under which the real estate was placed
under sequestration is a typical example of indirect discrimination, since it
was clearly aimed at making it more difficult for the owners to sell their
property.
The two court decisions also failed to
evaluate the fact that the local councillors of Gy. village had accepted the
ombudsman’s recommendations without any reservations, and apologised to the
plaintiff in a resolution passed in this respect.
We further submitted that both courts have
misinterpreted Article 75 paragraph (1) of the Civil Code, which stipulates
that civil rights shall be respected by everyone, and that they are protected
by law. Their decisions are contrary to Decision No. BH2001.61 of the Supreme
Court, according to which the violation of civil rights includes arbitrary
interference with privacy. The Supreme Court ruled that an interference shall
generally be considered arbitrary if it is explicitly contrary to the will and
intentions of the person concerned, and if the interference cannot be justified
after thorough deliberation of the circumstances.
Given
that an act is either lawful or unlawful, the following statement of the first
instance court, which was upheld by the Court of Appeal is simply impossible to
interpret: “The very reason
of the mayor’s visit to the K. family’s house was to settle the high emotions
which surrounded the case. It is obvious that the notary and the mayor, in
their official capacities, should not have expressed their opinion concerning a
sales contract between citizens, and they should not have given in to the
pressure of the crowd. However, their behaviour did not cross the boundaries of
a legal violation, from which persons may legally be protected.” In
the context of civil liability and the protection of personal rights a
procedure cannot be “only a little bit unlawful”. An unlawful act, no matter
its degree of severity, provides basis for liability. NEKI finds that the above
legal qualification cannot be interpreted, and it is unclear why the court
failed to draw the relevant conclusions with regard to the civil liability of
the authorities and with regard to the violation of personal rights.
*
Given
that the case of Jenő Sz. revealed a number of new evidence, NEKI decided to
take further measures in the criminal suit filed on behalf of Mrs. Bertalan N.
and the K. family as well. We therefore filed a complaint with the Chief
Prosecutor’s Office against the decision of the V. Town Prosecutor’s Office,
which had been passed in their case on 10 September 2003. We requested the
authority to order the Town Prosecutor’s Office to reopen its investigation on
the basis of our previous complaint, as well as on the basis of the newly
revealed evidence and witness statements. We further highlighted that - if the
Office were to find our request unfounded - it should be considered as a
separate complaint submitted than the case of Jenő Sz. and Endre T.
On
15 September 2003 the Chief Prosecutor’s Office informed NEKI that it had
forwarded our submission to the Szabolcs-Szatmár-Bereg County Prosecutor’s
Office for consideration. The County Prosecutor’s Office rejected our
submission on 13 November 2003. We therefore sent a letter to the Office
reminding them that in our submission we had requested that, if the proceeding
authority judged it unfounded, they should consider it as a separate complaint
submitted in Jenő Sz’s and Endre T's case. We therefore requested them anew to
either re-launch the previously terminated investigation, or to pass a formal
decision rejecting our complaint in the latter case.
On
24 November 2003, the County Prosecutor's Office informed NEKI that it ordered
the V. Town Police to launch an investigation concerning abuse of official
powers. The criminal procedure is still pending.
As
far as NEKI is aware, the County Prosecutor's Office has still not launch an
investigation in relation to the police officers who refused to act upon Olga
K's telephone call for police assistance, and the suspicion of violence
committed against a member of a national or ethnic minority. Instead of passing
formal decisions, the chief of the prosecutor's office is in regular
correspondence with NEKI , and, as it could be seen, it launched an
investigation into the alleged abuse of official powers following repeated
complaints.
Thus
the County Prosecutor's Office has seemingly come to respect the law out of
forced necessity, instead of as a legal duty prescribed by law.
[1] In its decision No. 1/P. 21512/200/8.sz. the Szabolcs-Szatmár-Bereg County Court found that the Council’s procedure resulting in the refusal was unlawful and ordered the Council to proceed in the case anew.
[2] In its decision No. 181/2001/7. sz. of 21 February 2002 the Vásárosnamény Town Court found Béla B. guilty of committing the offence dangerous threat and ordered him to pay a fine of HUF 20,000.
[3] Later, during the civil procedure initiated by NEKI, the notary admitted that he had annulled the sequestration with a decision of false content.
[4] Maiden name of Mrs. N.
[5] Act No. 4 of 1978.
[6] On this instance the Court decided to pretend that perjury was not punishable under Hungarian law. It also rejected the proposal of the plaintiff’s legal representative, who requested the court to obtain the relevant police record.
[7] Villagers and the local authorities have often accused Csaba and
Olga K. with “moving there from the
Ukraine”, buying a house, selling it for a higher price and then “take off”. The local mayor told them on
a number of occasions that “they were
mistaken to think that they could walk away from the village with so much
money”.
[8] Council Directive 2000/43/EC.
[9] Pp. 4-5. of decision No. 1.P.21.351/2002/26. of the Szabolcs-Szatmár-Bereg County Court.