20
Legislative proposals maintained
by the Commissioner for Fundamental Rights
and his Deputies
The CFR Act entitles the Commissioner for Fundamental Rights
that if the authority subject to inquiry or its supervisory organ fails
to form a position on the merits and to take the appropriate measure, or the Commissioner for Fundamental Rights does not agree
with the position or the measure taken, he/she can submit the
case to Parliament within the framework of his/her annual report.
Exercising this right, of those legislative proposals formulated
by him over the previous years that were not admitted by the
ministry concerned, the Ombudsman hereby submits the following ones to Parliament in this annual report.
In 2016, the Ombudsman asked the Minister of Human
Capacities to determine the size of the minimum hospital space
per person in a legal regulation (similarly to the case of care, educational and penitentiary institutions). The Minister did not agree
with the prescription of adequate hospital space per person.
In recent years, several reports issued by the Ombudsman
called attention to the fact that although during enforcement
proceedings, the amounts received as certain social benefits
determined by the law are exempt from the attachment orders,
in practice, these may also be collected for the purpose of debt
recovery. Granting exemption from attachment orders expresses
the legislator’s intention that the enforcement proceedings must
be conducted in respect of the enforcement of social security and
the maintenance of the social security of the debtor. While social
benefits paid by post are effectively exempt from the enforcement
proceedings, social benefits arriving on a bank account may be
subject to enforcement. In 2012 and 2016, the Commissioner for
Fundamental Rights initiated the review of the legal regulation
in order to guarantee the right to social security. Although the
Minister of Finance agreed with the above in principle, no legislation has since been drafted to this effect.
The Ombudsman for Future Generations proposed in 2016 in
a theoretical opinion that the legislator impose a restriction on the
sale of poor-quality, high pollutant lignite with low calorific value
to the population with a view to curbing the adverse health effects
of air pollution due to domestic heating. This position, consistently
advocated by the Ombudsman, supports the use of fuel wood with
a calorific value higher than poor-quality lignite in order to reduce
energy poverty. The Minister for Environmental Protection agreed
with the proposal, but he informed that the draft legislation presented by him required further administrative consultations. Despite the
supportive intention and efforts of the legislator, the act necessary for
the protection of the air has not been promulgated ever since.
In 2018, the Commissioner established in connection with
the outstanding student debts in higher education that full or
partial exemption from the obligation to repay the outstanding
amount of the debt, related to childbearing, only extends to the
mother and not to the other parent raising the child together with
the mother. In his report, the Commissioner pointed out that in
the case of parents who raise their children together, the total
budget of the family is made up of the income and possible debts
of the parents, so mothers who have student debts are in a situation comparable to that of fathers who have student debts. The
requirement of equal treatment could be satisfied by the following:
if the mother does not have a student debt any more, or she did
not have one previously, either, but the father, who raises the child
together with the mother, has one, secondarily, the preferential
treatment should also be available with regard to the father’s debt.
The Commissioner also indicated that the prevailing regulations
raised concerns with regard to the requirement of equal treatment concerning single fathers and single adoptive fathers. The
Ombudsman asked the Minister of Human Capacities to amend the
legal regulation, but the latter did not agree with the fundamental
rights-related arguments formulated in the report.
The Commissioner continues to maintain the above recommendations formulated over the previous years, and
asks Parliament to facilitate law-making necessary for their
implementation.
The right of the Commissioner for Fundamental
Rights to initiate the review of legal norms
Pursuant to the Fundamental Law of Hungary, the Constitutional
Court reviews the harmony of the laws with the Fundamental Law
at the initiative of the Commissioner for Fundamental Rights. The
CFR Act also allows the Commissioner to initiate the interpretation
of the Fundamental Law of Hungary.
In 2019, special mention should be made of the motion submitted by the Commissioner in connection with the comprehensive amendment of the Forest Act, which was drafted on the basis
of the motion submitted by several national nature conservation
organisations, and at the initiative and with the professional assistance of the Deputy Commissioner, Ombudsman for Future
Generations. The motion referring to the violation of the non-regression principle and of the requirement of legal certainty
pointed out the lack of several guarantees due to which the level
of protection by law of the common heritage of the nation identified in the Fundamental Law of Hungary as well as of the right
to a healthy environment decreased. The theoretical starting
point of the motion is that all those changes in legislation that end
protection, or do not provide for the same efficiency in comparison
with the efficiency of the earlier protection, and replace the legal
instruments of the enforcement of the precautionary principle and
the principle of prevention with ex post sanctioning, or relegate the
interests of nature protection behind economic interests, are in
breach of the non-regression principle.
The main finding of the Ombudsman’s motion is that the amendment of the Forest Act reduces – in both quantitative and qualitative terms – the restrictions aimed at nature protection, applicable to protected forests situated in NATURA 2000 areas. The
challenged legal provisions – against the interests of forest managers, among others – relegate nature conservation aims to the
background: while giving apparent priority to nature conservation,
REPORT ON THE ACTIVITIES OF THE COMMISSIONER FOR FUNDAMENTAL RIGHTS OF HUNGARY AND HIS DEPUTIES – 2019
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents