As of 1 January 2021, the Commissioner for Fundamental Rights shall proceed within the framework of an administrative authority procedure in cases specified by Act CXXV of 2003 on equal treatment and the promotion of equal opportunities (Ebktv), in line with the relevant procedural rules.
This administrative authority procedure of the Commissioner for Fundamental Rights shall have the aim of monitoring the implementation of the principle of equal treatment. It provides a means of legal remedy to those applicants who have suffered discrimination.
When does discrimination occur?
The principle of equal treatment is violated, i.e. discrimination occurs if a person or group suffers a disadvantage as a result of any of their protected characteristics. The exact definition of discrimination, as well as the scope of protected characteristics are defined by Act CXXV of 2003 on equal treatment and the promotion of equal opportunities.
The protected characteristics listed in the Act are as follows:
e) membership of a national minority,
h) state of health,
i) religion or belief,
j) political or other opinion,
k) family status,
l) motherhood (pregnancy) or fatherhood,
m) sexual orientation,
n) gender identity,
p) social origin,
r) part-time or fixed-term nature of the occupational relationship or other employment-related relationship,
s) membership in a representative organisation,
t) any other status, characteristic, or attribute.
In the context of the last point on any other status, characteristic, or attribute, those characteristics or attributes can be considered as protected which are not included in the statutory list of protected characteristics, but they are similar to them in nature.
Types of discrimination
The types of discrimination include direct discrimination, indirect discrimination, harassment, segregation, and victimisation.
It qualifies as direct discrimination if a person or group is treated less favourably than another person or group in a comparable situation is, has been or would be treated, on grounds of any of their protected characteristics, whether actual or presumed.
A provision that does not constitute direct discrimination and apparently complies with the principle of equal treatment shall constitute indirect discrimination if it puts, to a considerably higher extent, certain persons or groups bearing a protected characteristic in a position more disadvantageous than the one in which another person or group in a comparable situation is, has been, or would be.
A conduct of sexual or other nature that violates human dignity shall constitute harassment if it is related to any protected characteristics of the person concerned and has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
A provision shall constitute segregation if it separates, without the explicit permission of an Act, certain persons or a group of certain persons from other persons or group of persons in a comparable situation on the ground of any of their protected characteristics.
A conduct shall constitute victimisation if it causes, is aimed at causing, or threatens to cause injury to a person in relation to that person’s raising a complaint, launching a proceeding, or participating in such a proceeding because of the violation of the principle of equal treatment.
In addition to the above, the violation of an obligation prescribed by the law that is aimed at promoting the equal opportunities of persons bearing a protected characteristic (e.g. disabled) shall constitute the violation of the principle of equal treatment. (Examples include failure to fulfil the accessibility obligation, failure to provide a special educational needs child with the development prescribed by an expert specialist, etc.)
As a general rule, a measure or a conduct shall not constitute a violation of the principle of equal treatment if it limits the right to equal treatment with the objective of enforcing another fundamental right, provided that the limitation is inevitable, and appropriate for achieving, and proportionate to, that objective. Furthermore, a conduct shall not constitute a violation of the principle of equal treatment either if it is justified by reasonable grounds that are directly related to the legal relationship concerned, as confirmed by objective assessment.
The most typical individual fields of the principle of equal treatment are occupational requirements, social security, healthcare, housing, education, and access to and supply of goods and services.
Against whom can an application be submitted?
The principle of equal treatment shall be observed by each and every actor of the public sector (including the Hungarian State, local and national minority self-governments and their organs, organisations exercising authority competences, the Hungarian Defence Forces and law enforcement organs, public foundations, statutory professional bodies, and employees’ and employers’ representative organisations, organisations providing public services, public education institutions and higher education institutions, persons and institutions providing social and child protection care, and child welfare services, museum institutions, libraries, and institutions of community culture, voluntary mutual insurance funds, private pension funds, healthcare service providers, political parties, and all other budgetary organs).
In addition to the above, the principle of equal treatment shall be observed by anyone, in the course of his/her given activities, who provides services or goods, all employers with regard to occupational relationships, and anyone who receives state aid, during the use thereof.
Applications may be lodged against the above-cited persons or organisations.
In which cases is the Commissioner for Fundamental Rights not entitled to proceed?
The obligation to observe the principle of equal treatment is not required in legal relationships under family law or between relatives, in relationships of private nature, in legal relationships of religious communities directly related to their faith-based activities, and in membership-related legal relationships between members of enterprises or organisations. Consequently, the Commissioner for Fundamental Rights may not proceed in these cases.
Who can submit an application?
The principle of equal treatment shall be observed with respect to all natural persons, groups of natural persons, legal persons, and organisations without legal personality, staying within the territory of Hungary.
As a general rule, applications for the investigation of discrimination may be submitted by the aggrieved party himself/herself. The aggrieved party may authorise anyone to submit the application on his/her behalf or represent him/her in the proceeding. In these cases, the authorisation granted by the aggrieved party to the representative shall be enclosed with the application. The authorisation shall be signed in front of two witnesses. The aggrieved party may also be represented by a civil society organisation or a representative organisation which, in addition to its authorisation, shall also submit its articles of association or deed of foundation.
If a minor has been subjected to discrimination, the application shall be submitted by his/her statutory representative (his/her parent).
Civil society organisations and representative organisations may also submit applications to the Commissioner for Fundamental Rights if the violation of the principle of equal treatment or the imminent danger thereof affects a larger but not precisely identifiable group of persons. National minority self-governments may also file applications with regard to the violation of the principle of equal treatment in respect of a given national minority, while trade unions can do so with respect to cases concerning employees. (Thus, in these cases, civil society organisations or representative organisations do not participate in the proceeding as authorised representatives, but as clients, therefore they shall be entitled to clients’ rights.) However, civil society organisations or representative organisations are required to enclose their articles of association or deed of foundation even in these cases, in which the legal protection of those persons who bear a protected characteristic relevant to the case shall be listed among the objectives and tasks of the given organisation.
What shall the application contain?
The application requesting the investigation of discrimination shall contain the following:
- the name and address (postal address) of the applicant,
- the name and address of the organ or person subject to the complaint (which/who has caused an infringement),
- the date and time of the infringement,
- the detailed description of the measure or conduct subject to the complaint, along with the detailed presentation of the circumstances,
- the reasons (the protected characteristics) for which the infringement has been caused to the applicant,
- whether the applicant has initiated a proceeding before the court or another authority in the given case,
- the applicant’s request for the Ombudsman’s proceeding.
How is the proceeding conducted?
The main procedural steps related to the investigation of the violation of the principle of equal treatment are as follows:
- the Commissioner for Fundamental Rights shall examine the application received,
- if the application is not free of deficiencies, the Commissioner for Fundamental Rights shall require the applicant to remedy them,
- the Commissioner for Fundamental Rights shall notify the organ or person subject to the complaint about the initiation of his/her proceeding, and he/she shall call upon the above organ or person to make a statement regarding the application, and to attach evidence,
- the Commissioner for Fundamental Rights usually holds a hearing in which he/she shall hear the clients, and, if necessary, the witnesses (the venue of the hearing is usually the major’s office under the domicile of the applicant),
- if necessary, the Commissioner for Fundamental Rights shall apply additional means of proof (e.g. on-site inspection, appointment of experts, testing, etc.),
- upon the joint request of the clients, the staying of procedure may be ordered,
- the Commissioner for Fundamental Rights shall suspend his/her proceeding if the applicant has brought an action before the court for the violation of the principle of equal treatment, and he/she shall decide on the application after the decision of the court has become final and binding,
- the Commissioner for Fundamental Rights shall attempt to facilitate a settlement between the parties before making a decision,
- if a settlement is not reached between the parties, the Commissioner for Fundamental Rights shall make a decision (he/she either establishes the violation of the principle of equal treatment and applies sanctions, or rejects the application).
Specific evidentiary rules:
The applicant shall be required to demonstrate the likelihood that he/she has suffered a disadvantage and he/she bore, in fact or as presumed by the infringer, a protected characteristic specified in the Ebktv at the time of the infringement. If the applicant has complied with his/her obligation to demonstrate the likelihood of the above conditions, then the other party (the organ or person subject to the complaint) shall be required to demonstrate that the circumstances, the likelihood of which was demonstrated by the aggrieved party, did not exist, or he/she either observed the principle of equal treatment or was not required to observe that principle regarding the legal relationship concerned.
What decisions can be made by the Commissioner for Fundamental Rights?
- The Commissioner for Fundamental Rights does not make a decision on the merits of the case:
- he/she rejects the application (e.g. if it is not a case concerning discrimination, therefore it does not fall within the competence of the Commissioner for Fundamental Rights; the application was late; the application has already been adjudicated on by the court or another authority);
- he/she terminates the proceeding (e.g. if the application should have been rejected; if the applicant has failed to make a statement upon the invitation of the Commissioner for Fundamental Rights; if the applicant has withdrawn his/her application);
- he/she approves the settlement reached between the parties in the proceeding by a decision.
2. The Commissioner for Fundamental Rights makes a decision on the merits of the case:
- he/she establishes that no infringement (discrimination) has been committed and dismisses the application;
- he/she establishes the infringement (discrimination) and imposes sanctions,
- the sanctions to be imposed by the Commissioner for Fundamental Rights are as follows:
a) he/she may order the termination of the unlawful situation;
b) he/she may prohibit the unlawful conduct for the future;
c) he/she may order that his/her final and binding decision in which he/she establishes the violation of the principle of equal treatment be published;
d) he/she may impose fines (ranging from HUF 50,000 to HUF 6,000,000);
e) he/she may apply a legal consequence specified in a separate Act.
Legal remedy against the decisions of the Commissioner for Fundamental Rights
- Administrative court actions against the decisions (disputed administrative activities) of the Commissioner for Fundamental Rights shall be initiated by submitting a statement of claim.
- The Budapest-Capital Regional Court (1027 Budapest, Tölgyfa u. 1-3.) shall have exclusive jurisdiction over the administrative court actions brought against the decisions of the Commissioner for Fundamental Rights under Ebktv.
- The statement of claim shall be submitted to the Commissioner for Fundamental Rights, taking into account the rules of Act CCXXII of 2015 on the general rules on electronic administration and trust services.
- The statement of claim shall be submitted within 30 days from the communication of the decision (disputed administrative activity).
- The statement of claim shall include the name of the proceeding court (the Budapest-Capital Regional Court), the plaintiff’s name (and its company registration number or another registration number, address or seat, tax identification number and position in the action (the plaintiff), as well as the name, address or seat or, if appropriate, other contact details of the plaintiff’s legal representative), the defendant’s name (the Commissioner for Fundamental Rights), seat (1055 Budapest, Falk Miksa u. 9-11.) and position in the action (the defendant), the data necessary or suitable for identifying as to how and when the administrative activity subject to the dispute was carried out and as to how and when the party concerned became aware of it (e.g. the number of the challenged decision), the data from which the competence and jurisdiction of the court can be established, the infringement caused by the administrative activity, together with the presentation of the facts and evidence serving as the basis thereof, and the explicit claim requesting the court’s decision.
- The Commissioner for Fundamental Rights shall refer the statement of claim, together with the documents relating to the case, to the proceeding court (within 15 days, as a general rule).
- The procedural fee of the administrative court action is HUF 30,000 which shall be borne by the losing party.
- Legal representation shall be mandatory before the Budapest-Capital Regional Court.
- The Budapest-Capital Regional Court shall proceed under the provisions of Act I of 2017 on the Code of Administrative Court Procedures.
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