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The
Activities of the Parliamentary Commissioner for Human Rights in the Protection
of the Civil Rights of Children in Hungary
Albert
Takács
The
Parliamentary Commissioner for Civil Rights (Ombudsman) is a parliamentary
institution. According to Act LIX (passed by Parliament on 1. June 1993)
"the duty of the Ombudsman is to investigate or to have investigated any
abuses of constitutional rights, he has become aware of, and to initiate general
or particular measures for the redress thereof (paragraph (1) of Article 32/B of
the Constitution)." The
election of the Ombudsmen, General Deputy of the Ombudsman, and of two special
Ombudsman took place on 30. June 1995. Their mandate terminated after six years
by the expiry of the term of mandate. The General Assembly elected Barnabás
Lenkovics as Ombudsman, Albert Takács as General Deputy Ombudsman and Jenő
Kaltenbach as Ombudsman for the National and Ethnic Minorities. They entered
office on 1. July, 2001. Attila
Péterfalvi was elected on the 12 of December as Ombudsman for Date Protection
and Freedom of Information. The
Parliamentary Commissioner for Civil Rights may investigate the procedures of,
and measures taken by, all authorities excepting those of the courts. The scope
of these powers extends also to service providers in monopoly-like positions. In
the course of his investigations, the Commissioner enjoys broad authority; he
may require the submission of documents, interview the parties involved, conduct
investigations on the scene and require statements and explanations. He may also
request the body exercising supervision over the authority involved to conduct
an investigation on its own. However, he may not decide cases brought before
him, he may only make recommendations, which, evidently, are not binding for
anyone. Issuing
a recommendation equates to making the determination that a constitutional
impropriety has occurred. In this way a dialogue may develop in the course of
which the authority involved, its supervisory body, in particular cases the
relevant Ministry or even the Government, may be addressed. In the light of the
arguments presented, the Commissioner himself may modify his position or his
recommendations. He must convince the party with the opposite interest, i.e. the
authority, that on the basis of the lessons of the case, the incorrect
procedures or inappropriate attitudes should be abandoned and that there should
be no departure from the correct interpretation of the constitution or, as the
case may be, that the modification of unconstitutional provisions of law should
be contributed to. The Parliamentary Commissioner for Civil Right remains in
communication with the parties involved on a continuous basis and may
come back to the issue any time and may ask for an account of the compliance
with the settlement based on his recommendation. The Ombudsmen of civil
democracies try to ensure through this "weak system" of means that the
authorities should apply the professional experience accumulated by them to the
service of the interests of the parties. In the effectuation of human and civil
rights, a command supported by the power of the authority is, in any event, the
last resort, and issuing such commands belongs, primarily, to the competence of
the courts. The Commissioner must achieve by strong and solid arguments that the
authorities empowered to decide cases should admit their errors and correct the
decisions accordingly. Thus, the "compulsion" applied by the
Commissioner is exerting pressure, formulated professionally and amplified,
through the use of publicity, that has been given expression in the constitution
developed on the basis of democratic values. The
Parliamentary Commissioner for Civil Rights makes an annual report on his
experiences obtained in the course of his official activities, concerning, in
particular, the situation of constitutional human rights and the attitudes of
the authorities concerning the initiatives taken, and recommendations made, by
him as well as the result of those initiatives and recommendations. The
most important event in Hungary concerning children's rights was the enactment
of Act XXI/1997 on the protection of children and on the administration of
guardianship affairs. The
Parliament of the Republic of Hungary declared in the first section of the Act
the intention to define the basic rules supporting by provisions and measures
the work of the State, local self-governments, natural and legal persons caring
for children, as well as non corporate institutions in order - to
enforce the legal rights of the children and the accord and satisfaction of
parental commitments, - to
prevent or terminate the assault of children and to replace the missing parental
care, and - to help social adapting of young adults dropping out of children's
care. The Act, - relying on the Constitution of the Republic and on Act LXIV/1991,
enacting the Treaty on Children's Rights as accepted in New York on November 20,
1989 - defined the basic rights of children, the guarantees for the effectuation
of these rights and the system and rules of the protection of children. The Act
laid down as principle that governmental and non state organisations and persons - are obliged to proceed taking into consideration the interest of the
children, - have to contribute to their upbringing within family home circle by
providing the necessary support to the child and its family, and - have to ensure the safety, nursing, education and healthy development
of personality of those children who, by any reason, dropped out of their
family. The group of persons endangered the most by social restratification is
that made up of children. Every second person among the poor is a child or a
minor. The
proportion of children in need has increased particularly in towns. Their
chances for social integration have gradually decreased. Knowing the situation,
we try to pay particular attention to the civil rights of this layer and to the
reinforcement of the network of institutions that may increase their chances for
integration. Children and minors do not complain or very rarely. Since
exercising their function the Ombudsmen conducted several _ex officio investigations.
From among them: comprehensive investigation was performed on the realisation of
the constitutional rights of inmates in different children's homes and in
shelters for alien children in 1998 and 1999, respectively. In the course of
2000 in Heves county crimes committed against children and minors within the
family and the responsibility of the relevant authorities was investigated. According
to the results of investigations, the most critical point of the protection of
children is the insurance of their social security. In Hungary the number of
endangered children exceeds 320.000, from among them more than 20.000 live
within child welfare services. Endangering is mostly due to economical situation
or inadequate social environment. An
important improvement in the assertion of children's right is due to the
principle declared in the Child Protection Act: "a child shall not be
separated from his or her family because of their economic difficulties". According
to the results of the Commissioners’ investigations the removal of children
from their families due to financial reasons, occurred less frequently. One of
the planned modifications of the Child Protection Act - suggested by the
Commissioner - might help families e.g. by covering sublease expenses and thus
supporting homeless families. Child
welfare services are one of the most important elements within the system of
institutions for the protection of children. The Act on the protection of
children and guardianship administration defines the ensuring of children's
welfare and the setting up of child welfare services as a basic obligation of
local governments. However, during the investigations the Ombudsman found that
in approx. 10 per cent of the investigated cases serious improprieties occurred
related to child protection. This was mostly due to the failure or default of
local governments in setting up the basic care system for child protection, or
even if they had, they failed to supervise their activities. It became evident
that the very different economic possibilities of different settlements largely
determined the quality of service. Sometimes even the most basic conditions of
operation - like a room to conduct conversations in privacy, or a telephone or
fax - are missing. Signalising
and case discussion are no longer unfamiliar concepts within the welfare
service, but doctors, policemen, representatives of the schools and district
nurses, state atorney's office should be involved as well. The co-operation
among these institutions might be aggrevated by their different approaching.
Such differences might emerge between representatives of the family welfare
system and educationalist. Whereas former ones emphasize the importance
of keeping the family together, the school - once it wants to get rid of the
child who is in trouble and is qualified as being a risk - prefers to take steps
to have children removed from the family. Child Protection Act binds the above
institutions and individuals to their signalising and discussing obligations. One
of the most important conclusions drawn from a comprehensive investigation
conducted in 2000 is that the most important institutions for child protection,
hardly ever communicate with each other. Crimes committed against children are
reported to criminal authorities. The investigation authority, as it is not
obliged by statutes to do so, failed to inform the child welfare organs of the
report, thus the latter could not provide assistance to the endangered children.
The Ombudsman, as a result of the investigation, recommended that - in order to
effectively protect children - welfare services should be informed of conflicts
necessitating police intervention. The
Parliamentary Commissioner dedicates distinguished attention to the protection
of children's rights in the future as well. To
this end he pays regard to: -
the process of conversion of children's homes of great strength into intimate
family-type smaller ones, -
the establishment of special institutes for minors with conduct problems, drug
or alcohol addicts -
the assertion of the right to expression of opinion and to complaint of minors
living in children's homes -
the activities of authorities and child care institutions in order to prevent
and anticipate abuses. The
Parliamentary Commissioner supported the legislation of children's rights. Since
entering into force of the Act, based on the results of individual and _ex officio
investigations, the Ombudsman recommended several modifications, some of
which were taken into consideration. Similar results were achieved concerning
the amendment of various statutes. The Parliamentary Commissioner undertakes continuous efforts in order to improve the effectiveness of the execution of the rules of law and to introduce new attitudes to the activities of the local governments with their duty of child protection.
The General Deputy of the Ombudsman in his Annual Report of 2001
emphasized the exceptional importance of the protection of children' s rights.
In the course of 2001 no ex officio
investigation was perfored concerning welfare services However , many individual
petitioners complained that inmates within welfare homes had the possibility of
alcohol and/or drug consumption, that minors were left unattended, ill-treated,
psychically abused. Occasionally even food or pocket-money was withdrawn.
Retarded development of infants occured due to insufficient attention. According to previous practice, in the case of complaints concerning,
child protection institutions, the Ombudsman-prior to local
investigation-addressed the head of the relevant authorities or organs
responsible for guardianship administration, requesting surveillance. In 2001
the investigations justified the subject of petitions only in one single case. In 1998 the previous General Deputy of the Parliamentary Commissioner
performed comprehensive investigation on the human rights conditions in 13
children's homes. In 2002 repeat control investigation took place in four from
among the most condemned institutions and additionally in a nursery home, in
order to reveal the effectuation of the previous recommendations of the
Ombudsman.
The General Deputy of the Parliamentary Commissioner found,
that from among the above institutions two were closed and one is under
reconstruction. In the recently set up homes the previously established
reconstitutional improprieties (e.g. dismal furnishing of rooms, unlocked
drawers, inappropriate processes concerning escapes, lack of qualified staff)
still subsisted; to this end he forwarded repeatedly recommendations to the head
and to the maintainer of the institution.
In the children's and nursery homes under reconstruction no
constitutional improprieties could be demonstrated. In one of the institutions
the available financial support covering provisioning and material expenditure
was found to be insufficient.
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Last edited by Barneombudet November 12, 2002 |