Administrative review

Continuity of law is apparent in the rules of administrative procedure which still rest on Act IV of 1957. However, an amendment established administrative review in 1990. Being proceeded according to the law of civil procedure, they soon reached a sizable volume of cases, mainly caused by numerous claims on social insurance and pension rights.

Table 6.1.:Administrative review: number o f incoming cases, decisions and appeals

1980 1990 19951

first instance -incom ing 1,315 1,518 27,441

- decided 1,331 1,430 26,589

appeals 543 592 3,547

High court cases 115 591

59 500

Source: Office of the National Council of the Judiciary

1. Includes social insurance cases. The significant increase in the number of cases is due to Act No. XXVI of 1991 extending the scope of judicial review of administrative decisions.

2. Cases of protest of legality ( törvényességi óvás) (1980, 1990) and request for review (felülvizsgálati kérelem) (1995). See Act No. LXVIII of 1992.

6.2. The State Audit Office

The State Audit Office (SAO) is the financial-economic control authority of Parliament (regulated by Act No. XXXVIII of 1989). The SAO has the right to supervise the state budget and its operation in terms of legality and effectiveness.

The SAO reports the results of its investigations to Parliament. This report must be published in every case. The SAO has the right to investigate every organization holding state property. The SAO can supervise the economic activity of the political parties, too, but only from the point of view of legality [Galligan and Smilov, 121].

The SAO, as the institution of legislative power specialised in financial and economic audits, operates under the constitution and other relevant laws, independent of the executive authority. Its independence is guaranteed by the following:

- its President and Vice Presidents are elected by Parliament, a two-thirds majority of the vote is required;

- its duties are exclusively assigned by Parliament;

- i t s reports are disclosed to the public (with the laws on the protection of private information duly observed);

- the regime of the publication of its reports, the audit plan, the focal point and frequency of the audits and the methods of the examinations are established by the Office itself, within the law defined framework [State Audit Off., 1998].

One of the important tasks of the SAO is to examine cases of corruption and organized crime in the post-communist society [Interview Katona in EECR, 1997, 6.4.]. According to the President of the SAO, Dr. Árpád Kovács, one of the main sources of corruption is the fact that “the construction of the managing and administrative institution system was slow to start and is still lagging behind the change of the structure of ownership but the deficiences of legal compliance and the intermingling of organizations, persons and entities are also related to the fact that income processes have been restructured.” The President of the SAO has also stated that the findings of the Hungarian audit office have indirectly proven the existence of an extensive black market economy and its connections with corruption. The black market economy is estimated to be about 30 percent of the GPD [State Audit Off., 1999].

VI. 3. Ombudsman

In 1989, at a round table conference on the political future of Hungary the decision was made to establish the institution of Ombudsman. This institution would replace the complaints’ institution of the communist party ( népi ellenőrző bizottság). The establishment of the Office of the National Ombudsman not only satisfied a social function but also a political one. The democratic opposition was afraid that the successor party of the communist party

would win the first elections. Hence the opposition was interested in the establishment of a system of checks and balances in society.

It took until 1993 for the National Assembly to pass Act No. LIX of 1993 on the Ombudsman Parliamentary Commissioner for Civil Rights. The Act speaks of an Ombudsman for the Protection of Human and Civil Rights and a special Ombudsman: “for the protection of certain constitutional rights Parliament may elect also a special ombudsman under Act No. LIX of 1993 section 2/(2). The special ombudsman has the right to take independent measures in his field”. Two such special ombudsmen have been established at present. In fear of misuse of official databanks being matched without restraint, the former president of the Constitutional Court (Dr. Sólyom) instigated an ombudsman for the protection of privacy. Another Ombudsman (Parliamentary Commissioner) was installed for the protection of the Rights of Ethnic and National Minorities. He is charged with looking after the many violations of rights of the Roma. But with other groups, such as students or military service men, also asking for their own parliamentary commissioner the present ombudsmen get concerned that such demand might weaken all of them [Napi Magyarország, 1999, 4 June],

Hungarian Parliament was helped by the success of the Polish ombudsman who also offered practical help in establishing the Office [int. A.

Varga]. Nevertheless, traditional Hungarian jurists still wonder whether the institution of Ombudsman fits into the system of judicial review, i.e., administrative courts. [Int. Prof. Herczegh], Since 1998 some members of Parliament voice concern that the institution of the Ombudsman could easily be drawn into political disputes. An indication of this may be the refusal by Parliament to accept the recent report of the Parliamentary Commissioner for Data Protection and Freedom of Information on the content of police video tapes.

The Ombudsman is elected for a period of six years by a two-thirds majority vote of all members of Parliament and has to be fully independent. She or he cannot be a member of a political party. For this reason, a person in the academic profession is usually sought. The Ombudsman has to report annually to the parliament, has the right to check decisions taken by the parliament, has the right to express his/her opinion on laws that have not been adopted by Parliament, has the right to interpellate ministers, and may also request the help of the Constitutional Court. The Ombudsman does not have the right to bring a case to court.

The Ombudsman holds an office that is responsible for the tasks of administration and preparation. This is set forth in Act LIX of 1993 on the Ombudsman for Civil Rights [Section 28/(2)]. The operational costs of the ombudsman, his staff and office organization shall be determined in a special chapter of the state budget [Act LIX of 1993, section 28/(3)]. They are

frequently called upon to initiate ex officio examinations, like those in prisons, orphanages, mental institutions, or to investigate the situation of conscripts in the army. However, the impact of such reports remains dependent on support by the media, as their advice cannot be legally binding.

The Ombudsman generally takes sides with the victim, sometimes against public opinion [Napi Magyarország, 1999, 4 June; Népszabadság, 1999, 8 September], That was the case when an Ombudsman supported a number of cases of Roma, who make up four percent of the total inhabitants of the country.

The Roma are discriminated against by almost all institutions, regularly being stereotyped as criminals.[Hum. Rights Watch, 1996], This makes the Ombudsman well known in socially weak groups and maybe among intellectuals, but in the middle classes it remains relatively unknown.

Nevertheless, the office of the Ombudsman receives a great number of complaints of all sorts, so that a strict selection is necessary. There must be legal grounds for the complaint, and all regular legal remedies have to have been exhausted before the Ombudsman will deal with it. This excludes, for example, all complaints on victimization under the communist regime as the lustration law was not applied on a wide-scale in Hungary. Independence of the judiciary also denies the Ombudsman any right to examine the functioning of courts of justice, even though judicial procedures give rise to a great number of complaints.

75-80 percent of the cases at the Office of the Ombudsman are not accepted. Two-thirds of the remaining 20-25 percent are rejected in the second round. Finally, the Ombudsman ends with a recommendation in approximately 80 percent of the remaining cases. The recommendation is sometimes formulated in very general terms. In some cases the “result” takes the shape of moral satisfaction.

VII. Constitutional remedies