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1st case: Mayor I. • The Equal Treatment Authority initiated ex-officio proceedings against a mayor who made derogatory statements on a meeting of the representative body against pregnant, Romani women (he also made similarlyinsultingstatements regarding gypsy criminality). The mayor alleged for instance that members of this ethnic group unlawfully acquire eligibility to certain social security benefits (eg.: double child benefits). He described this behavior as follows:
Pregnant Romani women take medication without existing medical condition in order to give birth to physically and mentally handicapped children, and beat with rubber hammer their abdomen for the same purpose. • The above prejudicial allegations became widespread through various media outlets, and were transmitted through the local media channel. • Basis of the administrative proceedings: • The complained-of behavior was humiliating, touched upon Romani women and it was highly likely that a causal relationship existed between the protected characteristics (gender, ethnicity) and the prejudice (humiliation in public) • Defense: • The mayor wished to call attention to some “well-known facts (problems)” regarding the Roma population. First, members of Roma population routinely give birth to children at very young age. Second, there is a narrow layer of Romani individuals, the members of which pursue dangerous lifestyle and endanger the proper development of their children.
The Equal Treatment Authority • The authority assumed jurisdiction relying on Section 4 (b) of the Act on Equal Treatment. According to this section the principle of equal treatment must be observed by municipalities and its bodies. • Harassment established: the act created a humiliating atmosphere, related to bothRomani women in general and pregnant, Romani women in particular and there was a causal relationship between the protected characteristics and prejudice. The authority made its decision public for 90 days on its web site and imposed an identical obligation on the municipality. Widespread publicity and the number of the injured were assessed as aggravating circumstances.
The Metropolitan Court • It has exclusivejurisdictiontoreviewourdecisions • Appealdismissed • Reasoning: • The decision of an administrative body may be appealed only if there occurred either some substantive or procedural violation of law OR if the administrative body applied erroneous interpretation of law. • Holding: • The appeal was without any merit. The authority lawfully assumed jurisdiction, correctly established the facts of the case and applied proper interpretation of law. Consequently, the authority came to the right conclusion. The court attached special significance to the fact that the mayor had admitted the utterance of the statements in question. In addition, his explanation was contradictory at best and fell short of that required by law.
SupremeCourt • Reversedand obligated the authority to pay the costs and expenses of the appellant, which arose during the proceedings both before the Metropolitan Court and The Supreme Court. • Reasoning: • The Court did not disturb the set of factsestablished by the Metropolitan Court. • However, it emphasized that the lower court and the authority failed to give special respect to the provisions of the Act on the Municipalities. • This law defines the rights and obligations of municipalities in general. In particular, it says that its duty is to exercise the executive power conferred upon it through its bodies. The mayor deems a body of the municipality.
It goes without saying that the principle of equal treatment shall be adhered to only when the municipality acted withpowers conferred upon him. • Private statements of the mayor (part of it is hearsay only) did not establish any legally cognizable relationship between the injured individuals and the mayor. • In addition, they lived in another municipality. Further, even assuming the existence of a legally cognizable relationship, the mayor did not make his derogatory statements in the scope of his official duties. He merely acted as an ordinary citizen. • It also follows that the municipality is not accountable either because it would be anomalous to impose responsibility on the municipality for statements issued by its bodies acting without proper authorization. • Consequently, the Hungarian Equal Treatment Authority improperly assumed jurisdiction by applying an overbroad application of law sweeping too broadly. Then, The Metropolitan court erred to sanction the procedure and the decision of the authority without proper basis in law.
2nd case: Mayor II. • The Hungarian Helsinki Committee submitted a complaint as an ActioPopularis to the authority. • Petitioner alleged that after a murder of a juvenile, the municipality organized a demonstration against violence in the scope of which the mayor called attention to the proliferating Roma violence. • He also insinuated that Romani individuals might hide behind this atrocious act. Then, many Romani individuals experienced violentacts at the hands of local citizens. • Defense: • Anti-Roma sentiments have been independent of his speech. Next, he denied any allegation tying the murder to Romani individuals. • Finally, he argued that he had made his statements as a private person. Such speech and the participation on the demonstration enjoy constitutional protection (freedom of speech and assembly).
The EqualTreatmentAuthority The authority assumed jurisdiction. Then, it established that the mayor musthave been aware of public sentimentsregarding Romani individuals. His speech in itself was suitable to incite hatred against and fearinRomani individuals at given place, time and manner in general. The mayor conceded that after his speech he was compelled to dissuade young individuals from attackingRomani individuals as a revenge. The authority balanced the mayor’s right to free speech and assemblyagainst the constitutional principle of human dignity and came to the conclusion that the latter must prevail. The Equal Treatment Act exempts any behavior from adhering to the principle of equal treatment if there is a countervailing, fundamental constitutional right, And the restriction is necessary, proper (suitable) and proportional.
The authority held that the constitutional right to human dignity is so fundamental as to enjoy priority with respect to the right to free speech and assembly in certain cases. Metropolitan Court: Reversed and remanded Reasoning: The speech in itself does not create any legally cognizable relationship between the mayor and petitioners. Assuming jurisdiction presupposes some kind of official act under color of law, official measures, proceedings or activity.
Supreme Court Review • An appeal is pending before the Supreme Court. • The Ombudsman of National and Ethnic Minorities filed an amicus curiae brief in which he had supported the position of the authority. He maintained that excluding acts of mayors from the scope of the Equal Treatment Act is clearly contrary to the legislative intent (the letter and the spirit of the law). • Finally, municipalities receive state subsidies and special provisions require recipients to adhere to the principle of nondiscrimination. Thus, the responsibility of the mayor and the municipality rely on dual legal grounds.
