The Hungarian Civil Liberties Union (HCLU) initiated an actio popularis lawsuit based on the Equal Treatment Act of Hungary (ETA) against the Heves County Police Department following racially motivated events in the village of Gyöngyöspata (Heves County, Hungary) in the spring of 2011. In its judgment of 8 February 2017, the Supreme Court of Hungary (the Kúria) ruled that the failure to protect the Roma from racist harassment amounted to harassment under the ETA.
In its court application, the HCLU made two major allegations.
Firstly, the HCLU alleged the police violated the ETA when they failed to protect Roma citizens from racist harassment perpetrated by extremist groups that organized illegal patrols, marching through the Roma rows of the village for several weeks, intimidating local residents.
Secondly, the HCLU claimed that the police violated the right of equal treatment of the local Roma by its ethnic profiling activities after the extremists left, more concretely by carrying out a disproportionate fining practice for petty offences (like lack of bike accessories, littering and spitting) against the local Roma in comparison to the local non-Roma, during a period of 7 months. The claim was supported by an ombudsman’s report substantiating the discriminative fining practice as well as testimonials by affected Roma and witnesses. On the HCLU’s motion, the police provided the court with documentation of all the fines imposed in the village in the given period against local inhabitants. The data deriving from these documents were ethnically classified by the police according to criteria determined by the HCLU, including the surname and address of those fined. The disaggregated data showed considerable disproportionality to the detriment of the Roma. The data also showed that for certain bagatelle offences the Roma had been singled out for sanctioning by the police.
On the first instance, the Eger Regional Court determined in September 2015 that the police’s inaction in the face of the extremists’ racially motivated activities was a form of discrimination (harassment). The court ruled the police had failed in their duty to defend and enforce the rights of Roma citizens. The first instance judgment also found that the police’s fining practice amounted to direct discrimination. Still, the court did not ban the police from future rights violations, which was a separate claim of the HCLU. However, the court ordered the Heves County Police Department to publish the judgment on its website and inform the Hungarian Bureau of Communication about the judgment’s availability. The court dismissed the applicant’s further claims aiming at the prevention of similar rights violations in the future (e.g. the adoption of a police strategy or the mandatory participation of police officers at anti-discrimination trainings). Watch the HCLU’s film on the first instance trial here.
The police appealed against the judgment and so did the HCLU due to dismissal of certain claims.
In April 2016, the second instance court, the Debrecen Regional Court of Appeal, rejected all claims of the HCLU. The court found no legal basis for police action in national law. Thus, although the extremists had a racist motivation with the patrols, the police did not have the obligation to act because of gaps in domestic laws at the time. Related to the other aspect of the case, the court found that HCLU could not substantiate discrimination in relation to the fining practice. The court ruled the applicant should have observed and documented all the cases when police officers failed to fine non-Roma inhabitants for similar minor offences for which the Roma were fined. Or the claimant should have substantiated the intention to discriminate on the part of the police chiefs or police officers. Importantly, the second instance judgment – contrary to the first instance ruling – made no single reference to international human rights provisions or jurisprudence binding the Hungarian state and also failed to refer to the Hungarian Constitution and previous domestic judgments relevant to the case.
The HCLU requested revision of the judgment by the Kúria, the Supreme Court of Hungary. The HCLU also submitted a request for preliminary reference to the European Court of Justice proposing questions in relation to article 8 (1) of the RED (burden of proof) and article 15 (effective, proportionate and dissuasive sanctions) read together with article 7.
The Kúria gave an oral judgment in the case on February 8, 2017. On the basis of the announced operative provisions of the judgment, for the HCLU at first it was not entirely clear whether the court ruled in its favor regarding both major aspects of the case or only in relation to the police’s failure to protect the Roma from racist harassment. However, in the oral reasoning of the decision, the Kúria expressed in no uncertain terms that they agree with the first instance court in relation to the police’s fining practice as well and that the claimant was successful in substantiating the discriminative fining practice, which resulted not only in direct discrimination but also in harassment of the local Roma. The Kúria – like the first instance court – ordered the Heves County Police Department to publish the judgment on its website and inform the Hungarian Bureau of Communication about the judgment’s availability. The Kúria – unlike the first instance court – also banned similar rights violations in the future.
The HCLU made video recordings of the trial and the announcement of the judgment, so each and every word is documented.
The HCLU immediately issued a press release announcing the victory in both major aspects of the case. A few hours later, however, the Kúria posted a press release, clarifying they had made a mistake during the oral reasoning of the second part of the judgment and that they are actually upholding the second-instance court’s ruling with regard to HCLU’s allegations of a discriminatory fining practice by the police.
This has become the first court case in Hungarian legal history since the regime change in which a court reversed a ruling it had publicly announced before. The fact that such an incident would occur at Hungary’s final appeals court only aggravates the matter and might amount to the violation of article 6 (1) of the European Convention on Human Rights (ECHR). The HCLU, as a claimant, does not currently know the reasons why its second claim was rejected, as the oral reasoning of the Kúria supported HCLU’s claim. The HCLU is looking forward to the court’s reasoning in writing which will now have to include a written reasoning that contradicts the one announced orally.
It also has to be emphasized that the Kúria did not even mention HCLU’s preliminary reference request in its decision. The court’s failure to react to this request, at least orally, also raises article 6 (1) concerns under the ECHR.
Despite the dismissal of the ethnic profiling part of the case, the HCLU is very proud of the judgment regarding the issue of state protection against racist harassment. The Kúria emphasized in the oral reasoning that the Gyöngyöspata incidents were the second most serious racially motivated events in Hungary since the regime change (the most serious were the racist serial murders), and the police clearly had the positive obligation to take measures against racist harassment which they failed to do. The inaction of the police amounted to harassment under the Equal Treatment Act. This ruling of the Supreme Court of Hungary is a considerable success.
We received the written judgment of the Kuria on 20 of March. It explains that in the Kuria’s view, HCLU failed to establish the presumption that the identity checks and misdemeanor-related fines subjected the local Roma to a disadvantage compared to the majority population. The court held that the data and witness statements used by HCLU were not suitable for establishing that presumption.
You can find the related reasoning in para 39 of the judgment. Para 40-41 refer to the error made during the oral reasoning. Still, there is no explanation for the reasons for the error.
HCLU is considering applying to the ECtHR in this case, based on the violation of its right to a fair trial.