null Commissioner for Fundamental Rights Takes Stand on Enforcement of Freedom of Expression

The person exercising executive power is entitled to act against the expression of any opinion by the employees that violates or threatens the employer’s specific interests, however, in the actual implementation, complying with the statutory regulations, the enforcement of the principles of the rule of law and the freedom of expression, as well as the observation of the appropriate formal requirements are also fundamental constitutional criteria, as was pointed out by Ombudsman Dr. Ákos Kozma after his inquiry.

The officials of Vác Municipality turned to the Commissioner for Fundamental Rights with a petition, in which they complained of the provisions set out in the normative instruction regarding the communications made by the executive directors of the economic associations fully owned by the municipality, which had been issued by the mayor of the city. The complainants are concerned that the instruction is suitable for seriously restricting the freedom of expression of not only the executive staff but also, the employees employed by the municipality.

In his report on case No. AJB-422/2021, Dr. Ákos Kozma shared the view of the competent appointed government official on that the instruction does not qualify as a means of public law to regulate organizations but it is actually an instruction realizing a normative regulation that was formally and lawfully issued with regard to exercising employer’s rights. At the same time, the Commissioner pointed out that, deriving from the principle of the rule of law, it is required that all normative internal legal acts should not go contrary to the law that is the basis for their authorization, or any other law, and they should not extend beyond the provisions set out in the laws. 

It was concluded by the Commissioner for Fundamental Rights that the requirements that basically concerned the executives were extended by the instruction to the employees of the companies as well. He pointed out that the instruction was issued by the mayor of the city by extending beyond the statutory authorization and violating the principle of the rule of law. In comparing the Hungarian Labour Code and the contents of the instruction, the Commissioner disclosed that the instruction established extra requirements to the detriment of the employees with regard to the freedom of expression. According to the report, some of the turns of phrases used in the instruction such as” it causes a moral, economic and professional disadvantage”, or “it may shatter the confidence of the public in the municipality” may raise concerns regarding a wide range of communications made by the employees. The Ombudsman stressed that this may generate an interpretation that will preventively restrict the freedom of expression of the employees concerned as a result of the negative labour law and civil law implications.

The Commissioner for Fundamental Rights established that the instruction and any potential practices based thereon are suitable for causing an impropriety with regard to the employees’ freedom of expression, and for creating a direct and serious danger of violating the law.

With a view to remedying the improprieties, Dr. Ákos Kozma requested the Mayor of the City of Vác to repeal the instruction with the normative content that raises concerns, and as long as it can be established whether the employees had been prejudiced, from a labour law perspective, in any way whatsoever as a result of the application of this instruction, to take the necessary measures for the compensation thereof. Furthermore, he called the attention of the appointed government official to that they should take the necessary statutory measures in each case when a mayor issues instructions of unlawful normative content in the future.

Please, find the relevant report at the following link: AJB-422/2021.