Report of the Commissioner for Fundamental Rights and the Deputy Commissioner responsible for the protection of the rights of nationalities concerning official control activities and measures related to housing in Miskolc
The Commissioner and the Deputy Commissioner have determined that the Miskolc authorities have developed a practice of intimidating, raid-like joint official control activities without explicit legal authorization which infringe the right to fair procedures, the right to privacy, the right to legal remedy and the principle of equal treatment. In their report, they have requested the repeal of local government decrees which contravene national law, and have assembled a list of recommendations addressed to the Miskolc Local Government and the competent ministries in order to resolve the issue of the segregated living areas of Miskolc and that of the practice of evictions and the rising trend of homelessness, urging authorities to find a long-term solution.
A number of human rights civil organisations have submitted a common petition to the ombudsman in 2014, raising fundamental rights-based concerns regarding the practice of official control activities coordinated and carried out jointly by the Miskolc Local Government Police and other local authorities and bodies, and regarding the local government decrees serving as the basis of these controls. According to the petitioners, the inhabitants of the concerned areas, mostly Roma individuals, have perceived the raid-like joint controls as intimidating and harassing.
As the joint control activities – which were conducted simultaneously but under different legal bases – have raised the possibility of the infringement of fundamental rights, Commissioner László Székely and Erzsébet Sándor-Szalay, Deputy Commissioner responsible for the protection of the rights of nationalities have initiated a comprehensive joint ex officio investigation. Having regard to subsequently submitted petitions, the ex officio investigation has also covered the issues of the modification of the local housing decree and the compliance of the Miskolc Local Government with its obligations in the field of housing, social welfare and child protection. The joint investigation has also covered local decrees adopted by other municipalities surrounding Miskolc as a "reaction" to the aforementioned development, limiting access to social welfare and local government benefits, the right to lease out local government-owned flats, and participation in the public employment programme for disadvantaged individuals who have moved into the municipalitiy with financial support from another local government.
The Commissioner and the Deputy Commissioner have turned to numerous local authorities and utility providers; officials from the Office have conducted on-the-spot investigations in order to be able to gather and thoroughly examine information, data and circumstances relevant to the investigation. During these on-the-spot activities, the officials have met not only with the relevant local authorities but also with the individuals living in the relevant segregated environment.
The investigation has established that the frequently raid-like, commonly conducted, and often mass official control activities conducted in the segregated living areas by local government authorities, public utility providers, and other institutions of different profiles, different competences and different rights of investigation were organized without explicit legal authorization; this is incompatible with the principle of the rule of law and the requirement of legal certainty. The individuals affected by the official controls were unable to properly interpret and follow the legal background and legal basis of the numerous simultaneously conducted activities. All of the above have led to impediments regarding the right to fair procedures and the right to legal remedy. The mass official controls conducted often repeatedly with a preventive intention, with police support and without explicit reasons have had an intimidating effect and have, according to the standpoint of the Commissioner and the Deputy Commissioner, restricted the right to privacy of the concerned individuals.
The report has ascertained that the organization and execution of the joint official control activities has infringed the requirement of equal treatment: more than 90% of the joint official control activities conducted in Miskolc took place in those segregated living areas which house economically disadvantaged, impoverished individuals, most of whom belong to the Roma minority.
The report states that that in a democratic state based on the rule of law, having regard to equality before the law, a direct obligation arises to bring the practice of organizing and conducting joint, coordinated official controls in Miskolc which infringe equality and the right to fair procedures to an immediate stop. Such controls must further be avoided as regards all Hungarian municipalities.
Two decrees of the Miskolc Local Government also raise serious fundamental concerns, which made the statutory scrutiny procedure by the Government Office of Borsod-Abaúj-Zemplén County and the subsequent petition by the Government Office to the Curia justified. The adoption of rules which regulate community living in a way that interferes with the privacy of vulnerable individuals and do not respect equal dignity is objectionable from the point of view of the rule of law and the protection of fundamental rights. A provision of a local government decree which makes the reimbursement payable to the former lessor upon the termination of a lease contract with the local government contingent upon the purchase of real estate outside the premises of the municipality (thus quasi conditional upon moving out of the municipality) is unacceptable from the point of view of equal treatment. Acting upon the petition of the Government Office, the Curia has determined that this provision of the local housing decree was contrary to national law, and has annulled the provision in question. Similarly, the Commissioner and the Deputy Commissioner have found that the fact that some municipalities surrounding Miskolc have responded to the abovementioned provisions with decrees which are exclusionist in content and violate national law also raises concerns.
With their report, the Commissioner and the Deputy Commissioner draw attention to the unfeasibility of the living conditions of individuals (including the most vulnerable group of children) living in segregated areas and to the fundamental rights consequences thereof. To effectively prevent mass homelessness – taking into account inter alia the rights of the children concerned – there is an immediate need for communication between the relevant institutions and for immediate coordinated response and aid. The 13 segregated living areas located in the town place a serious burden on the Miskolc Local Government, but law enforcement type responses and constant resettlement only serve to deepen the conflicts even further. In order to truly solve the problems at hand, Miskolc is obviously in need of professional assistance and targeted subsidies from the state, and an active assistance by civil society.
Therefore, the Commissioner and the Deputy Commissioner have assembled a list of recommendations addressed to the Miskolc Local Government and the institutions concerned. They have recommended inter alia that the joint official control activities conducted by large numbers of officials of authorities and public utility providers should be terminated and that the local government decree containing the rules of community living infringing statutory law should be repealed. They also stated that the relevant institutions should cooperate in order to prevent evictions from the segregated areas, and that an action plan should be developed to solve the housing issues of families left homeless. Segregated living areas in Miskolc should be phased out and a programme should be enacted to prevent their reappearance.
The Commissioner and the Deputy Commissioner have requested the Minister of Human Resources to review and investigate the situation and circumstances of the segregated living areas and their inhabitants in Miskolc, and to develop a complex action plan in cooperation with the Miskolc Local Government and relevant civil organisations