Zoltán Szente in his essay of the title 'Free Translation of the Model. The Evaluation of the Ombudsman for Civil and Political Rights' Activity of Six Years' writes about the ombudsman "with general powers. He is of the opinion that the ombudsman has often over-exceeded her legal authority and has actively committed herself to the interpretation of the Constitution. However, in spite of this criticism he approves of Gönczöl Katalin having been chosen for the position. Showing genuine commitment to the preservation of constitutional rights, and keeping away from the struggles in internal politics, she has succeeded in gaining a reputation that can greatly contribute to the office of the ombudsman becoming established in the Hungarian public law. As a summing-up Szente states, that the professional achievement of the first general ombudsman can also be a directive for her successors, since there are further opportunities in the development of the institution.
László Sólyom "The Ombudsman's Jurisprudence and Norm Control' is a writing that informs us of the history of the ombudsman's legal institution, and the work and practice of the first Hungarian ombudsmen. Sólyom is preoccupied with analysing the statutory interpretation of the Data Protection Ombudsman, comparing it to the practice of the Ombudsman for Civil Rights, and the jurisdiction cognisance of the Hungarian Constitutional Court. In Sólyom's opinion the recommendations of the Data Protection Ombudsman and the Ombudsman for Civil Rights can be very important, since they can provide a substitution and replace -ment for the jurisdiction based on primary laws, that is missing from the Hungarian law and order. As the recommendation of the Data Protection Ombudsman often contains a statement that, when generalised, can appear as a rule, and is capable of becoming an independent norm, there can be no doubt that the recommendations and standpoints of the Data Protection Ombudsman have their place on the bookshelf of the Hungarian constitutional law.
Andrea Krizsán in her essay 'Non-discrimination in the Practice of the Ombudsman for the Rights of National and Ethnic Minorities" evaluates the Ombudsman for the Rights of National and Ethnic Minorities' work hitherto. The complaints concerning discrimination, and directed to the Ombudsman are very many. This is partly due to the fact, that the ombudsman is also competent in cases of discrimination, which would go to a court or another forum of legal remedy, if a proper legal regulation of discrimination existed. It is the merit of the Ombudsman for the Rights of National and Ethnic Minorities that he uses a notion of discrimination, which is wide enough to involve both direct, and indirect discrimination, and is even capable of exploring the systematical forms of discrimination besides individual legal offences. Besides this, however, she points out some of the insufficiencies that have characterised the Ombudsman for the Rights of National and Ethnic Minorities' practice so far. According to Krizsán, the ombudsman must not bargain about legal questions during the mediations. In her opinion, if the Ombudsman for the Rights of National and Ethnic Minorities states that discrimination took place, it must not be subject to any more debate. As the ombudsman's main deficiency, however, Krizsán names the use of publicity, that is, the lack of it.
András Jakab and Péter Cserne in "The Place of Statutes Enacted by a Two-thirds Majority in the Hungarian Hierarchy of the Sources of Law', when evaluating the legal practice of the Constitutional Court conclude, that statutes enacted by a twothirds majority can be regarded as an independent source of law. In their opin-
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ion the Constitutional Court is thus wrong in doclaring that no hierarchy exists between statutes enacted by a two-thirds majority, and a simple majority act that they are equal in rank.
Attila Gábor Tóth talks to László Majtényi, the former Data Protection Ombudsman. The Hungarian Parliament has not re-elected its internationally well-known and professionally outstanding Data Protection Ombudsman. In our interview László Majtényi sums up his six years in office, speaks about his notion of the ombudsman's function and about individual cases relating to matters of principle. He also speaks about his co-operation and conflicts with Parliament and the government. Looking back, he considers it a good decision that he had chosen the ombudsman's classic function, and preferred individual legal remedy to officially launched investigations. At the same time, and after six years' experiences he thinks: "The whole issue of data protection is nothing but constant retreat. The Data Protection Ombudsman tries to hold on and keep up the level of protection already achieved, but either because of technological development, or because of the expanding state power, he is constantly forced to withdraw. From this point of view, we seem to be losing the game. On the other hand, however, I have cherished the illusion that my blustering has had, after all, some sense in it. The Data protection Ombudsman constantly has to warn society, and be active in the prevention of mass legal offences. Due to this, I have been subject to serious, occasionally rude attacks. It is possible, that 1 have not been active as frequently as I should have been."
This time we asked some experts of their opinion about some aspects of the institution of ombudsman, and in particular about their experiences in Hungary. Among others, to what extent has this institution worked well and become rooted in Hungary; in what respects does the Hungarian ombudsman's work differ from the practice in other countries; how has the social and political judgement of the ombudsman changed; and what differences can be pointed out in the individual ombudsmen' view of their function?
János Sári has approached this question from the angle of the historical development of the separation of powers. He wrote: the ombudsmen's work seems to break those limits open, which spring from legal phrasing. This, on the one hand, means that it applies not only to the constitutionally fundamental rights, but also to the assertion of rights in general. On the other hand - although we cannot find any direct reference to this -, in the ombudsmen's practice rights and fundamental rights receive protection not only as entitlements, but also according to the principle which is systematically employed by the Constitutional Court, and which is called the objective part of the right falling on the state.
Bernadette Somody has compared the individual ombudsmen's notion of their function, and concluded that in the general ombudsman's work a particular side of his notion of function can be seen: the protection of defenceless people and the strengthening of social sensitivity towards human rights are what can be considered as the general social function of the ombudsman. A very similar notion -in favour of minorities - can be found in the Ombudsman for the Rights of National and Ethnic Minorities' practice. He has not only tried to draw more social attention to the minority rights and to the equality of minorities, but has also
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acted as a mediator in cases of these minorities' social rights. According to Somody, the Data Protection Ombudsman's work is characterised by the attempt to juristicalty control the legal material concerning information rights, to develop and unify this legal material and jurisprudence.
Péter Tilk has analysed the relationship of the Constitutional Court and the ombudsmen and concluded, that it is fortunate from the point of view of the cooperative obligation of constitutional organs, if, when interpreting the Constitutional provisions, the ombudsmen and the Constitutional Court consider each other's standpoint - although, naturally this is cannot be an obligation for the Constitutional Court. In spite of the differences in these organs' nature they can achieve outstanding results in the protection of law, complementing and mutually affecting each other's activity.
The authors of this column are Gábor Halmai and András Papp. Halmai comments on the Constitutional Court's recent decision relating to the ombudsman's scope of authority. In his essay Halmai points out that, as opposed to governmental authority the ombudsman's constitutionally guaranteed opportunity to draw the proper authorities' attention to the abuses of constiaitional rights detected when investigating the effectiveness of civil rights can be ranked among the so called 'delicate' counterbalances. According to him, the effectiveness of this very counterbalance has been made difficult by the decision of the other institution functioning as a counterweight, which practically ruled out any competitors from the most important fields of legal protection.
The other author of the column, András Papp comments on two bills: the bill prepared by the office Ombudsman for the Rights of National and Ethnic Minorities', "on racism and its prevention, and on securing equal treatment"; and the bill prepared by two representatives, "on securing the equal treatment of men and women". Besides regarding these two documents as major landmarks in the legal development of Hungarian minorities, he analyses and evaluates the drafts in detail as to why some of their parts are nor suitable for realising the aims they had set themselves.
This column of the present issue of Fundamentum presents the President of the Republic's proposal, and András Hanák's writing, even before the law known as Lex Répássy, which is at present a pending case before the Constitutional Court, would be subject to an examination as regards its constitutionality. Starting from the bill, Hanák's essay examines the already enacted, but not yet promulgated Act's constitutionality. Referring to American and German examples, and examining the practice of the Hungarian Constitutional Court, he considers the legal institution of the right of reply, and that of rectification unconstitutional; and the freedom of the press restricting.
In this column we present three recent decisions of the Constitutional Court. Those of the free speech of prisoners; of the impartiality of judges; and of the discrimination in the treatment of barrenness.
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We also present in Hungarian the Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, ratified on 18 December 1979, in New York. It set up a Committee on the Elimination of Discrimination Against Women.
This time in this column we introduce the international organisation called Frontiers, and we present a writing by Péter Buda, who, as the Hungarian representative of the organisation analyses the Hungarian developments of the re-connection of state and the Church. In the author's opinion, the planned modification of the Church Act, that is, the attempt to make the relationship of the state and the Church practically multiple-stage fits the process which is aimed at reducing the results of civic transformation. He feels sorry, that while the period of transition would provide an exceptional opportunity to revive the tradition of Hungarian national liberalism, and to remedy the tragic deeds of 'the thousand years of Hungarian statehood', many people try to put these very mistakes on a pedestal. Even if it was only a few years ago that we were told: "the neutrality of the state is a precondition of the freedom of religion, that is, the state cannot identify itself with any ideology; nor can it interweave with any organisation supporting an institutionalised ideology".
In his review of László Sólyom's book The Beginnings of Constitutional Jurisprudence in Hungary the reviewer notes the publishment of the volume with appreciation. Then he goes on to make critical comparative statements about the first (up to 1998) and second (from 1999) period of Hungarian constitutional jurisprudence. He closes the review with the hope that in this second period we will not see the complete regression of the achievements of the first period, which took place mainly thanks to László Sólyom, and that the end of the beginnings of Hungarian constitutional jurisprudence, with the end of the Sólyom-era, will not mean the beginnings of the end as well.
In the recommendatory we briefly introduce The Door Opening to the Other Side, a volume of essays and studies, under the editorship of László Majtényi, in which well-known foreign and Hungarian authors analyse the exciting questions of data protection at home and in the international practice. ■
Visszaugrás
