Címke: kisebbségvédelem

Nationalities have always played an important role in Hungary’s history, despite the fact that the Hungarian people, who gave the country its name, have always dominated. Today, the protection of nationalities in our country is particularly important because of the large number of Hungarians who have been forced to emigrate. The large Hungarian diaspora does not look back on many centuries of history. Perhaps the first time many Hungarians emigrated abroad, for example to Turkey and the United States of America, was after the 1848 War of Independence. It should be mentioned, though, that the Ottoman Empire had already deported many Hungarians as janissaries from the 1500s, some of whom were settled in Egypt. Research into the traces of the Hungarians who remained in the East after the conquest has recently intensified.

Which nationalities are particularly important to protect? This is a very difficult question to answer. At first glance, we would say that the most obvious need is probably to protect those nationalities that differ significantly from the dominant population of the state. Of course, the brutal oppression of black-skinned slaves springs to mind. However, this claim is disproved when we think of the conflicts between Serbs and Croats, Ukrainians and Russians, who are similar peoples in terms of origin and mother tongue.

Based on historical experience, many aspects of the protection of nationalities are worthy of further valuable research. Firstly, it involves the categorization of nationalities into several categories, somewhat similar to the categorization of churches. It should be emphasized that ‘stateless minorities’ may be the category most in need of protection because of their double disadvantage.

An interesting context for the future could be to look at the ‘double nationality’ status. In other words, an analysis of the sociological and, by extension, legal consequences of minority groups moving to a ‘third country’. Here we can think of the situation of Hungarian Gypsies in Romania, Slovakia or even Western Europe, or even the fate of Catalans and Basques, minorities in Spain, in the Americas.

A separate analysis could be made of the cost of protecting minorities if the head of state of a country is himself of national minority origin. This was the case, for example, with Rudolf Schuster in Slovakia, Klaus Johannis in Romania or Nicolas Sarkozy in France. But a very special case was the dictatorial government of Alfredo Stroessner, of German origin, in Paraguay. The status of Germans in Hungary is particularly strong, also because of the many former German-speaking rulers. Not only the Habsburgs should be highlighted, but also Sigismund of Luxembourg, who became the German-Roman Emperor as King of Hungary.

According to international legal classifications, national and ethnic minorities may be granted personal rights, collective rights and – the greatest benefit – autonomy.^[1]

Autonomy itself can range from territorial to personal.^[2] The legitimacy of the former arises especially where members of an ethnic minority are living together in a territorial block, forming the majority population there. While countries tend to show less reluctance in granting personal autonomy, the notion of territorial autonomy often causes strong aversion.

Examples for personal autonomy can be found in the legal status of Lapps in Sweden, of Danes, Sorbs and Frisians in Germany, of Russians in Latvia and Lithuania and – soon to be detailed – in the case of Hungary’s minorities.^[3]

Regarding territorial autonomy, further differentiation can be made based on whether this autonomy is embedded into the administrative framework of the state itself. If this isn’t the case, success requires a great deal of flexibility and active tolerance on the county’s part. For the first category, examples include the Åland Islands in Finland, Corsica in France, as well as Catalonia and the Basque Country in Spain. The second case entails, among many others, the Feröer-Islands in Denmark and 225 Native American communities in the USA.^[4]

The new law in Hungary replaces the former terminology of ‘minority’ with „national minority”, due to previous resentment about the Roma community being referred to as an ethnic minority group, as opposed to national minorities with nations of their own. „National minority” intends to signify that the group in question receives its privileges not only because it constitutes a numerically inferior group within society, but also because it is valuable to the nation. This value is something unique and distinct from the majority population; the cultural nuances embodied by the identity, the language and the historical traditions of national minorities.^[5] (That being said, any potential measures of positive discrimination are justified exactly by their low numbers. The disenfranchisement of the majority population, on the other hand, is thankfully almost nonexistent in our time. The very thought is frighteningly alien to the spirit of modern democracy and the rule of law; such as the cases of ancient Sparta and the South African Republic of last century.)

Although it rarely surfaces in public speech, international jurisprudence usually distinguishes three types of minorities:

• • those originally having belonged under the jurisdiction of one state, but annexation or border changes forced them under another,
  • the inhabitants of a given area before the state of the current majority was founded there, and lastly,
  • those who attained their citizenship after immigrating into the country.^[6]

It goes without saying that in terms of personal rights, there can be no differentiation between individuals across these groups. When it comes to collective rights, however, further protection is necessary in the order of the list above, as justified by the more solidly formed identities of the former groups, not to mention their potential historical grievances, such as those of the Hungarians who found themselves outside the country’s current borders. While under a democratic rule of law, nobody may be discriminated against based on their ethnic origins, it is important to note that a state’s decision on which groups it favors with what benefits, particularly autonomy itself, remains a matter of efficiency and viability. (Jurisprudence could further diversify these categories, such as whether or not the home country of a national minority itself hosts a minority consisting of the other country’s compatriots. Under these terms, Hungarians and Romanians are effectively mutual minorities. It is also an important consideration whether a minority possesses a mother country at all, the lack of which necessitates even steadier protection.^[7])

Regarding national minority rights, the author classifies them as either positive or negative rights. In this context, negative rights are understood as a lack of prohibition on the support a minority group can receive from its mother country. In the 21st century, it is unacceptable that possessing, for example, Hungarian citizenship would forfeit its bearer’s citizenship in the country of their residence. It should be a given, at least, that states refrain from restricting the ability of their national minorities in maintaining contact with their brethren. (We are given an interesting synthesis between the issuing of citizenship to compatriots living abroad and the protection of national minorities in a recent Spanish proposal that endeavors to grant favorable citizenship acquisition procedures to the descendants of Sephardic Jews expelled during the 16th century.^[8])

Although it remains exceedingly hard to vindicate minority rights in an international context, a state’s willingness to provide and reinforce these rights beyond the bare minimum on its own initiative is a hallmark of its progressiveness.

The former Minority Act of Hungary stood on legal principles roughly identical to the current one. Accordingly, national minorities are

„all groups of people who have lived in the territory of Hungary for at least one century, who represent a numerical minority in the country’s population, whose members are Hungarian citizens, who are distinguished from the rest of the population by their own languages, cultures and traditions, who demonstrate a sense of belonging together that is aimed at preserving all of these and at expressing and protecting the interests of their historical communities”.^[9]

The new legislation preserved the previously existing list of thirteen official minorities in its entirety, composed of the Bulgarian, Greek, Croatian, Polish, German, Armenian, Roma, Romanian, Ruthenian, Serb, Slovak, Slovene and Ukrainian communities.^[10] These national minorities enjoy full legal equality.^[11] On the other hand, international treaties also created a group of so-called ‘chartal minorities’ in Hungary. This group includes the Croatian, German, Romanian, Serb, Slovak and Slovene minorities, as well as Gypsies speaking Romani or Boyash as their first language; their legal protection^[12] being a result of the signing of the European Charter for Regional or Minority Languages.^[13] (This was extended in 2008 to include the Romani and Boyash languages.)^[14]

The current law lists Bulgarian, Greek, Croatian, Polish, German, Armenian, Roma/Gypsy (Romani and Boyash, hereinafter: Roma), Romanian, Ruthenian, Serbian, Slovakian, Slovenian and Ukrainian as national minority languages. Within the Roma and the Armenian communities, the Hungarian language is also counted as such.^[15]

Consequently – even though practice on the matter is less than consistent – we can distinguish between the protection of national minorities, and that of their languages. The law takes note of the fact that for many Roma and Armenians, Hungarian is their true mother language. (The question begs itself whether the possession of a distinct language can even be a requirement to being categorized as a national minority.)

The list is, of course, a relative one, but it certainly stands to reason that these thirteen national minority groups preserved the rights they formerly acquired. The inclusion of additional national minority groups is also a possibility. Taking into account our common historical traditions and values, one could rightfully ponder why Italians were ranked below the other thirteen in importance. Certain organizations – arguing for the general sympathy felt towards Hungary in many Turkic countries – suggested the possible inclusion of Turks as well. As is natural after a 150-year period of occupation, there are Hungarians with recognized Turkish ancestry. The previous law already allowed an ethnic group with at least a hundred-year presence and a thousand signatories to petition for official recognition as a national minority.^[16] This was taken up on, for example, by the Italians^[17], the Aegean Greeks and the Russians^[18], and one group even purported to be Huns while issuing the request.^[19] Realization was met with difficulties, however; illustrating the point that the popular initiation of the process isn’t nearly as effective as outright legal codification through parliament. (In the absence of this hundred-year requirement, even the Chinese could step up with a claim.^[20] The question is: where do we draw the line in the name of efficiency?)

The choice of which ethnic group to imbue with the recognition and protection of the law is a difficult one. To illustrate that, let us put forth a number of rhetorical questions. What is the main distinguishing factor between the already recognized national minorities and the rest of them listed above? The number of citizens identifying themselves with them? It is worth noting here that in this regard, different cultures present different attitudes. (For instance, whether it’s important for someone to be German, or it’s merely a case of possessing a German surname.) Are we only to study the number of indigenous Poles, or do we also count those who immigrated in the past fifty years? Can we discriminate against Italians and Turks whose original populations are low, but recently received a significant boost?^[21] For some, it is perhaps only their names (or a family legend) that reminds them of their origins^[22], and even in the „Thirteen”, many might only have responded positively for the sake of the benefits provided by the national minority status. These questions all highlight the relative and nuanced nature of these categories.

To continue with the questions, can it be a deciding factor whether the mother country of a given ethnicity is/was bordering Hungary? Despite many centuries of neighborhood, Poland no longer falls into this category, and even Italy was once bordering the western reaches of the Kingdom of Hungary, with many joint rulers down the line.^[23] Not only was Turkey a neighbor, it even annexed our current capital under Suleiman I. Which brings us to our next point: can it possess any relevance whether the role of a given people has been positive in our history? Can we distinguish based on this? This is also a highly relative matter, especially since contemporary foreign affairs may suddenly boost the importance of any country significantly. Let us add that the role of our current neighbours also wasn’t always a positive one, but we must look forward, not backward. To summarize: based on the above, it is the claims of Italians and Turks that would especially merit acknowledgement.

After the fall of Communism, the participation of minorities in public affairs, as guaranteed by the Constitution, was intended to be realized in the form of a collective ombudsman, into which all thirteen minorities were to delegate one representative. Later, political speech effectively washed together representation in public affairs with political representation, constantly stressing its need and importance. Parallel to this, an ombudsman responsible for minority affairs was created.^[24] The holder of this office was nominated by the president and confirmed by a two-thirds majority in parliament. In practice, however, different interpretations on certain fundamental rights kept occurring between the general ombudsman and the minority affairs ombudsman regarding grievances issued by minority citizens. (It is difficult enough to ascertain whether these offences even happened due to their ethnic origins.) Under the aegis of the new Fundamental Law, the office of the ombudsman became monocratic („one-headed”).^[25] This brings it under a unified direction, with the role of a separate minority affairs ombudsman being taken over by a deputy nominated by the singular ombudsman himself and confirmed, as before, through a two-thirds parliamentary vote. This deputy commissioner of fundamental rights is responsible for the legal protection of national minorities living in Hungary, monitoring their situation, guaranteeing their rights and taking all measures prescribed by law. In the event that the deputy possesses a degree of independence – the Hungarian law currently in effect allows for this – this model is well-suited to provide efficient legal protection for national minorities. (We can add here that even though the situation of Hungarians living there would strongly justify it, neither the Slovakian, nor the Romanian constitution has yet created such an institution.^[26])

In one of his previous publications, the author of this work suggested the inclusion of minorities in a theoretical second chamber of parliament, with a serious role to play there.^[27]

Bibliography

Barcy Zoltán – Somogyi Győző: Magyar huszárok, Budapest, Móra Ferenc Könyvkiadó, 1987.

Bindorffer Györgyi: Kisebbség, politika, kisebbségpolitika – Nemzeti és etnikai közösségek kisebbségi önkormányzati autonómiája Magyarországon, Budapest, Gondolat– MTA Szociológiai Kutatóintézet, 2011.

Cservák Csaba: Az ombudsmantól az Alkotmánybíróságig – Az alapvető jogok védelmének rendszere, Debrecen, Lícium-Art, 2013.

Cservák Csaba: Kormányzati és választási rendszer (avagy demokratikus hatalomgyakorlás komplex rendszere nemzetközi kitekintésben), PhD értekezés, SZTE-ÁJK, 2010.

Domonkos Endre: Nemzetközi autonómia-modellek és kisebbségi kérdés, A katalán regionális autonómia és tapasztalatai, PhD. értekezés, Budapesti Corvinus Egyetem, 2010.

Draskóczy István: Minorities in Hungary in the Árpád-age, Kisebbségkutatás, 2000/9.

Fábián Gyula – Ötvös Patrícia: Kisebbségi jog, I. kötet, Kolozsvár, Komp-press korunk baráti társaság, 2003.

Fejes Zsuzsanna: Határok nélkül? A határon átnyúló együttműködések jogi és közigazgatási környezete Európában és Magyarországon, Budapest, Akadémiai Kiadó, 2013.

Fejes Zsuzsanna: Határtalan lehetőségek: az együttműködés jogi feltételei a magyar-román-szerb hármashatár mentén, in Soós Edit – Fejes Zsuzsanna (szerk.): Régió a hármashatár mentén, Szeged, Szegedi Tudományegyetem Állam- és Jogtudományi Kar, 2010.

Majtényi Balázs: Nemzeti és etnikai kisebbségi jogok, in Jakab András: Az Alkotmány kommentárja, Budapest, Századvég Kiadó, 2009.

Szabadfalvi József: Nemzetállam és szuverenitás, in Takács Péter (szerk.): Államelmélet, Miskolc, Bíbor Kiadó, 1997.

Szalayné Sándor Erzsébet: A kisebbségvédelem nemzetközi jogi intézményrendszere a 20. században, Gondolat – MTA Kisebbségkutató Intézet, Budapest 2003.

Other sources

2011. évi népszámlálás, 9. nemzetiségi adatok, Központi Statisztikai Hivatal, 2014, http://www.ksh.hu/docs/hun/xftp/idoszaki/nepsz2011/nepsz_09_2011.pdf

Szefárd zsidók leszármazottai spanyol állampolgárok lehetnek, hirado.hu, 2014. február 9. http://www.hirado.hu/2014/02/09/szefard-zsidok-leszarmazottai-spanyol-allampolgarok-lehetnek/

References

1. Although there used to be historical periods when the collective aspects of national minority law were completely marginalised. See: Fábián Gyula – Ötvös Patrícia: Kisebbségi jog, I. kötet, Kolozsvár, Komp-press korunk baráti társaság, 2003, 35. ↑
2. See: Domonkos Endre: Nemzetközi autonómia-modellek és kisebbségi kérdés, A katalán regionális autonómia és tapasztalatai, PhD. értekezés, Budapesti Corvinus Egyetem, 2010, 24–25. ↑
3. Domonkos: Nemzetközi autonómia-modellek, 34–37. ↑
4. Domonkos: Nemzetközi autonómia-modellek, 31–33. ↑
5. See: Act CLXXIX of 2011, Section 1, Subsection (1). ↑
6. Szabadfalvi József: Nemzetállam és szuverenitás, in Takács Péter (szerk.): Államelmélet, Miskolc, Bíbor Kiadó, 1997, 137. ↑
7. The external support of national minorities can naturally be amplified by way of heavy cooperation with their mother country. This is at its most efficient when the two countries border each other. See: Fejes Zsuzsanna: Határok nélkül? A határon átnyúló együttműködések jogi és közigazgatási környezete Európában és Magyarországon, Budapest, Akadémiai Kiadó, 2013, 239. and Fejes Zsuzsanna: Határtalan lehetőségek: az együttműködés jogi feltételei a magyar-román-szerb hármashatár mentén, in Soós Edit – Fejes Zsuzsanna (szerk.): Régió a hármashatár mentén, Szeged, Szegedi Tudományegyetem Állam- és Jogtudományi Kar, 2010, 103–118. ↑
8. This proposal ended up being active legislation. See: Szefárd zsidók leszármazottai spanyol állampolgárok lehetnek, hirado.hu, 2014. február 9. http://www.hirado.hu/2014/02/09/szefard-zsidok-leszarmazottai-spanyol-allampolgarok-lehetnek/ ↑
9. See: Act CLXXIX of 2011, Section 1, Subsection (1). ↑
10. See: Act CLXXIX of 2011, Appendix 1. ↑
11. As a curiosity, a Ministry of Interior draft in 1992 – while leaving the rest of them in a status similar to the current one – intended to classify Gypsies, Armenians and Jews as ethnic, rather than national minorities, with less numerous privileges. This was met with great outrage and the Jewish community – upon its own request – ended up being deemed a religious, rather than a national minority. (See: multiple chapters of Bindorffer Györgyi: Kisebbség, politika, kisebbségpolitika – Nemzeti és etnikai közösségek kisebbségi önkormányzati autonómiája Magyarországon, Budapest, Gondolat– MTA Szociológiai Kutatóintézet, 2011.) ↑
12. Further reading on the role of the European Charter for Regional or Minority Languages in the international system of minority protection: Szalayné Sándor Erzsébet: A kisebbségvédelem nemzetközi jogi intézményrendszere a 20. században, Gondolat – MTA Kisebbségkutató Intézet, Budapest 2003. ↑
13. See: Act XL of 1999, Section 3. ↑
14. See: Act XLIII of 2008, Section 3. ↑
15. See: Act CLXXIX of 2011, Section 22, Subsection (1). ↑
16. See: Act LXXVII of 1993, Section 148, Subsection (3). ↑
17. Although the Italians were granted the National Electoral Commission’s (OVB) permission in January 2008, they were unable to collect the minimum amount of signatures necessary on time. See: http://www.nvi.hu/nepszav08/ovb/hu/osszefoglalok/20080825.pdf ↑
18. The Russian request foundered on formalities, because despite being mandated to do so by law, the National Electoral Commission neglected to formally request the opinion of the Hungarian Academy of Sciences (MTA). Majtényi Balázs: Nemzeti és etnikai kisebbségi jogok, in Jakab András: Az Alkotmány kommentárja, Budapest, Századvég Kiadó, 2009, 2408–2412. ↑
19. See: Resolution 32/2005. (IV. 27.). ↑
20. Interestingly, after helping to crush the Boxer Rebellion in 1901, the Austro-Hungarian Empire managed to acquire a concession of roughly a hundred hectares in the city of Tianjin, thus creating a „quasi-colony” with about 25,000 Chinese locals. ↑
21. It is even less justified to exclude the Turkish and Italian people from the list of beneficiaries based on population data. Taking into account recent arrivals, some of the established national minorities already fall into comparative numerical inferiority (see: 2011. évi népszámlálás, 9. nemzetiségi adatok, Központi Statisztikai Hivatal, 2014, http://www.ksh.hu/docs/hun/xftp/idoszaki/nepsz2011/nepsz_09_2011.pdf ↑
22. There are many Hungarians with Italian names, including notable jurists and composers. A few families also cultivate their Turkish roots from Ottoman times. The family of light cavalry lieutenant general Ferenc Czungenberg, originating from Csonka Bey, is but one of the many examples. See: Barcy Zoltán – Somogyi Győző: Magyar huszárok, Budapest, Móra Ferenc Könyvkiadó, 1987, 26. ↑
23. „Almost immediately after the birth of the Kingdom of Hungary, settlers (called hospes in Latin) started pouring in from the west continuously. A testament to their early presence is 35 settlement names with the Németi- prefix (meaning German) and 8 with Olaszi- (Italian), originating from the 11th and 12th centuries. They were dispersed around the country, depending on when they arrived and where they were needed. The newcomers were Germans, Italians (which, under medieval terminology, also included Walloons) Czechs, Poles and other neighboring peoples. Most of them were farmers, but merchants also arrived in plentiful numbers. It was the latter group that came to form the core of the newly founded cities.Among the more minor groups were those Italians that came to the Kingdom of Hungary to participate in trade and other financial matters during the 14th and 15th centuries. (During this era, Italians were living in virtually every country in Europe.) In 1402, the Italian community in Buda supported Ladislaus of Naples over Sigismund of Luxemburg during their succession conflict, for which the victorious Sigismund cast many of them into prison. Local Germans exploited the opportunity and largely took over their chamber offices, allowing them to control the mining operations of gold, silver and copper. The Italians soon regained these posts, and from that point forward, these two groups alternately controlled the mines of Hungary.” See: Draskóczy István: Minorities in Hungary in the Árpád-age, Kisebbségkutatás, 2000/9. ↑
24. The office of the ombudsman of minority affairs was created by the Act on the Rights of National and Ethnic Minorities in 1993 (Act LXXVII of 1993). According to this, the ombudsman of minority affairs was essentially subject to the same regulations as the general ombudsman (Act LIX of 1993). Because the election of the first minority affairs ombudsman required a two-thirds majority in parliament, it only came about in 1995, for various political reasons. ↑
25. See: The Fundamental Law of Hungary, Article 30, Section (1). ↑
26. See: Cservák Csaba: Az ombudsmantól az Alkotmánybíróságig – Az alapvető jogok védelmének rendszere, Debrecen, Lícium-Art, 2013, 5–48. ↑
27. See: Cservák Csaba: Kormányzati és választási rendszer (avagy demokratikus hatalomgyakorlás komplex rendszere nemzetközi kitekintésben), PhD értekezés, SZTE-ÁJK, 2010, 89–90. ↑