130
11. Legislation-related activities of the NPM
reports can also be examined from such an aspect. In the interpretation
of the Budapest Court of Appeal, the only barrier that the court is faced
with is that it cannot examine those specific items of evidence based on
which the Commissioner for Fundamental Rights drew conclusions, made
assessments, established facts or occurrences that ran counter to the laws.255
If the above-mentioned interpretation became general in the judicial legal
practices, it would result in a situation where the courts would qualify the
conclusions drawn and the measures proposed by the Commissioner for
Fundamental Rights unlawful in the framework of a lawsuit on personality rights, what is more, they could apply a personality rights-related legal
consequence against the Ombudsman if they thought that he did not use
an adequately neutral expression related to the judgment, proceedings or
omission of the authority that he had examined. Of course, I accept the
view that the Commissioner for Fundamental Rights should not be in the
position to make any irresponsible statements against anybody, however,
in order to defend the independence of the institution, I do not regard it as
acceptable if the authorities under review try to get the conclusions of the
NPM’s report “revised” by using the legal instruments applied in civil law
for the protection of personality rights.
It became obvious, related to this case, that the Ombudsman Act contains no provisions whatsoever in defence of the immunity of the NPM.
With a view to preventing similar legal disputes, I propose that the
amendment of Section 39/A of the Ombudsman Act be considered,
which would stipulate that “(2) With regard to the report issued as part of fulfilling the responsibilities of the National Preventive Mechanism, Section 28(4)
of the Ombudsman Act has governing effect. As regards the measures specified
in the report of the National Preventive Mechanism, the provisions set out in
Chapter 11 of the Ombudsman Act shall be applied”. Furthermore, I propose
that the following modification of the provisions set out in Section 28(4)
of the Ombudsman Act be considered: this provision will restrict or exclude
the enforceability of the requirements to be fulfilled by the reports of the Commissioner (including the claims for deleting the individual conclusions or proposals of such reports) before the court.
The Minister of Justice thinks that through the amendment of Section
39/A of the Ombudsman Act that I have proposed, the provisions thereof
would change depending on the actual context.256 Furthermore, he does
not think that such an amendment of the law is necessary which would
exclude, or in any way restrict the enforcement of personality rights or
255
256
Ruling No 32.Pf.20.505/2018/7-II of the Budapest Court of Appeal was put on file in my Office
under No AJB-2354-22/2019.
Section II.1 of Justice Minister ’s letter No. XX-AJFO/ID/267/2018/8 dated on February 27, 2019.
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