Projects in 2009
New subjects are called in the same project system, which are:
- Rights of people living with disabilities
- Children's rights: - violence to/among children
- Right to strike
- Right to free movement and transport
1. Project on the Right to Strike
The strikes of the past years affecting large crowds and the broad professional and social debates related to them have shown that the rules of a legal exercise of strike have not yet been adequately elaborated in the Hungarian legal system.
During his investigation the Commissioner had to pay attention at least to two conflicting contradictory interests. On the one hand employees are entitled to have the right to strike within limitations specified by law for the protection of their economic and social interests. On the other hand citizens actively not taking part in the strike but simply ‘suffering' it also may need legal protection: in fact the exercise of the right to strike necessarily also entails the limitation of their basic rights.
The Commissioner and his associates have repeatedly consulted labour law jurists and experts as well as labour mediators at strike negotiations as well as with trade unions of branches. The Ombudsman, utilising practical experience, has not only worded criticism but also made constructive proposals. The strikes that had taken place in companies providing public service and particularly doing passenger transport (Hungarian State Railways, Budapest Transport Company), strikes that have affected the daily life of a large part of the society served as specific justifications for launching the project in 2008. Due to the significant violation of interests and even causing the violation of law the strikes resulted in a number of complaints received by the Ombudsman.
The majority of complainants mentioned that they could not go to work, school and healthcare institutions because of the strike, and could not avail themselves of some public service (such as medical care and education). There were some who complained for the loss of income due to the strike and requested the Commissioner's assistance in compensating for the cost of means of transport or accrued loss.
The Ombudsman is not legally empowered to proceed in legal disputes between employer and employees. He can, however, investigate the fact that the strike of the employees of organs providing public service necessarily affects the circle of people using public service. He has stated about domestic legal regulation that the Hungarian Act on Strike deficiently or only in outlines specifies those rules that should be observed during strikes. Most of the problems causing abuse were found by the Ombudsman in relation to the obligation to ensure a still sufficient service, as well as in relation to the obligation to give information on the beginning, end and duration of the strike. Investigations were conducted in branches specifically ‘mentioned' by the Act on Strike, most affecting the population, namely in branches where in theory strike could be exercised only in a way which would not hinder the performance of still sufficient services. Such is public transport, and railways as well as the organisations of public transport in the capital city, further on education, energy supply and healthcare. He had to state in general that the exact specification of the contents of sufficient service is currently not in the interest of strikers and public service providers in labour conflict and there is no means to force out this accord.
We have checked in a follow-up investigation how the public service provided would satisfy the Ombudsman's earlier recommendations at the time of strike. Our associates went to monitor on the spot before the day of the strike as well as on the actual day at the central railway stations of Budapest in order to survey whether the information of citizens as well as satisfactory service provision were adequate. Though they have experienced some progress compared to the previous investigation attention again had to be called to the obligation to arrange for adequate services for those wishing to travel even during the strike. During the project the opportunity also arose though at present only in the form of a question that instead of the total ban on strikes of employees in professional service a more flexible mechanism could be evolved which would allow even this group of employees to avail themselves of the opportunity to exercise their right to strike within certain limitations and with the inclusion of proper safeguards. Each investigation was closed by recommendations and the proposals were basically accepted and supported by the organs concerned. Both the law maker as well as the organs implementing law agreed in that the modification and greater precision of the wording of the Act on Strike would be necessary on the basis of practical experience. For a long time no progress was made due to the lack of political consensus. Therefore the Commissioner made a proposal to the Constitutional Court. He requested the identification of unconstitutionality manifest in default due to the deficiencies of the 1989 Act on Strike as well as that the Constitutional Court should oblige the National Assembly to create a new legal regulation containing safeguards of basic rights. According to the Parliamentary Commissioner basic legal norms are missing about the specification of the extent of satisfactory service provision, conciliatory talks, and the announcement of the strike and the regulation of solidarity strike.
2. Project on the Right to free Movement and Transport
In early 2009 we launched the project dealing with the basic rights issues of transport with the argument that it touched upon not a single but several basic constitutional rights and requirements. Tasks related to transport presume a significant role by the state and local governments, which make indispensable also the investigation into state activities of a service provision nature. An approach to transport from the angle of basic rights is also important because every citizen participates in it in some form. Though the Constitution separately does not mention the freedom of transport but the right to free movement does include the freedom to change places by a vehicle or without it. It is not decisive whether the right to free movement in itself is realised but that how other basic rights are realised during movement and travel by transport. The investigation into individual transport, particularly by motor vehicle has explored the characteristics of interference by the authority in the nature of public administration, focusing on whether authority procedures meet the requirements of the state based on law and of legal security. In fact during the administrative, recording and controlling activities of the state such deficiencies may and do emerge which affect every partial area of transport by motor vehicle (such as letting it enter traffic, insurance, taxation, police procedures, use of roads against fees), and problems that are seemingly minor deficiencies may result in serious violations of the law in individual cases and groups of cases.
In the framework of the project – among others - the following investigations were completed:
- the process of the parking companies
- the practice of allowing cars imported from the European Union in traffic
- the compulsory insurance of motor vehicles
- the modification of the act on Road traffic in 2008, which introduced the principle of objective responsibility
- zero tolerance applied against drunk drivers, etc.