Beijing Law Review, 2012, 3, 112-120 Published Online September 2012 (
Changes in the Institutional Context of the Ombudsman
System in the Republic of Hungary in 2012
Máté Szabó
Faculty of Political Sciences, Eotvos Lorand University of Budapest, Budapest, Hungary.
Received June 8th, 2012; revised July 10th, 2012; accepted July 22nd, 2012
After the landslide electoral victory of the Fidesz-KDNP in 2010, the new Hungarian government with a two-thirds
majority in Parliament adopted a new Constitution which significantly modified the previous institutional structure.
Written by the former Commissioner for Civil Rights (as the Ombudsman of general competence used to be called) who
is now Commissioner for Fundamental Rights, this article describes, analyses and evaluates the changes which termi-
nated the previous Ombudsman system consisting of four Commissioners and established an independent authority to
uphold information rights on the one hand, and a unified Ombudsman structure with increased responsibilities and
powers on the othe r hand.
Keywords: Hungary; Ombudsman; Transformation; Constitutional Law
1. Introduction
After the democratic transition in 1989 the former Com-
munist states tried to use every institutional arrangement
to secure and stabilize the culture of hu man rights within
the new institutional framework. The Ombudsman insti-
tution, which was an invention of the Swedish constitu-
tional development 200 years ago, was received with
great interest by the new democracies of Central and
Eastern Europe. It was established without exception in
every former Communist state. We are going to focus on
the Hungarian development of the recent years after the
“electoral revolution” of 2010, resulting in a two-thirds
majority for the Fidesz-KDNP party coalition and ena-
bling the new government to adopt a new constitution
and a series of cardinal Acts which required a qualified
majority of two-thirds of Members of Parliament. The
new constitution (called Fundamental Law) and the new
Ombudsman Act, both adopted in 2011 by Parliament
and effective as of 2012, establish ed the new institutional
arrangement of the Ombudsman institution in Hungary.
2. The Original Institution as Set Up by Act
LIX of 1993 on the Parliamentary
Commissioner for Civil Rights [1]
Anybody may apply to the Ombudsman if they deem that
the proceedings of an authority or organ performing pub-
lic services, a decision or measure taken in the course of
these proceedings, or an omission to act by any authority
or organ performing public services have caused them a
constitutional rights-related injury, or that an imminent
danger thereof exists.
The Act of 1993 states that anybody may apply to the
Ombudsman, if they deem that the proceedings of an
authority or organ performing public services, a decision
or measure taken in the course of these proceedings, or
an omission to act by an authority or organ performing
public services have caused them a constitutional rights-
related injury, or that an imminent danger thereof exists.
The main task of the Parliamentary Commissioner for
Civil Rights is to inquire into any i mproprieties related to
constitutional rights he/she has become aware of and to
initiate general or particular measures for their redress.
The Parliamentary Commissioner for Civil Rights is
solely accountable to Parliament. As for the legal status
of the Ombudsman, in the course of proceedings he/she
has to be independent and may take measures exclusively
on the basis of the Constitution and Acts of Parliament.
The Ombudsman is elected for a six-year term by a
majority of two-thirds of the votes of the Members of
Parliament at the proposal of the President of the Repub-
lic. The Ombudsman may be re-elected for a second term.
The Act on the Ombudsman Gives an Exhaustive
List of Authorities the Activities of Which the Om-
budsman May Inquire into. These are:
Organs or organizations performing tasks of state
administration (e.g. town clerks, the Construction
Authority, guardianship authorities, customs and ex-
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Changes in the Institutional Context of the Ombudsman System in the Republic of Hungary in 2012 113
cise authorities);
Any other body acting as state administrative author-
The police, the armed forces and the security ser-
Local governments, minority self-governments, the
office of the mayor;
Notaries public;
Court bailiffs;
Bodies performing a public service (e.g. water, gas
and electricity suppliers, social services and health
care, educational institutions, parking companies,
public service media);
Fundamental rights may be infringed in particular
by the following:
Unreasonably long proceedings,
Provision of inaccurate or wrong information,
Unfair treatment,
Refusal to disseminate information on unreasonable
Unlawful d eci si on.
A very important aspect of the Commissioner’s role is
that a complaint may only b e filed if the complainant h as
already exhausted the available administrative remedies
—except for judicial review of administrative decisions,
or where no legal remedies are ensured.
Cases where the Ombudsman cannot help:
If the proceedings have begun before 23rd October
If the final administrative decision was made more
than 1 year ago,
If legal proceedings are pending or a final court deci-
sion has been rendered, or
If the complainant has started judicial proceedings.
The Ombudsman cannot inquire into the activities of
Parliament, the President of the Republic, the Consti-
tutional Court, the State Audit Office or the public
prosecutor’s office (except for the investigation office
of the public pr osecutor).
The Ombudsman selects him/herself the course of
action that is deemed to be most appropriate. Key
measures are:
To make a request for remedy to the supervisory au-
thority of the authority that has infringed constitu-
tional rights.
To initiate a remedy request at top management level.
To file an application with the Constitutional Court
for the examination of th e unconstitutionality of a ru le
of law.
To initiate (at a public prosecutor’s office) the lodg-
ing of a public pr osecutor’s pr ot est .
To propose that the Law Commission amend or re-
peal an existing rule of law or that a new rule of law
be adopted.
To submit the case to Parliament and request a par-
liamentary inquiry.
3. Main Directions of the New Ombudsman
System from 2011
The institution of Ombudsman itself is like a “ship being
rebuilt on water”. With the making of the new Funda-
mental Law the Ombudsman system was radically re-
modelled in such a way I as had been advocating it for
years as Ombudsman: one single institution for the pro-
tection of rights, with deputies responsible for the fields
of the rights of national and ethnic minorities, and envi-
ronment protection, respectively.
During the parliamentary debate of the Fundamental
Law and of the Ombudsman Act in 2011 all four Om-
budsmen had the opportunity to express their views. Al-
though certain structural elements of the new regulation
are in accordance with my original concept, but I would
not take responsibility for the en tire normative content of
the bases and final form of the new regulation, since this
regulation, like all rules of law, is based on a multitude of
political and legal compromises that might actually im-
pair the unity of the original con c ept.
The new Fundamental Law changed the structure and
competences of certain institutions of our system based
on the rule of law; among others it changed that of the
Ombudsman, an institution of human rights protection
with 15 years of history. Instead of the four Ombudsmen
established upon the Swedish model, the new Funda-
mental Law opted for having just one single Ombudsman
institution. One reason co uld be that this system has been
chosen by the great majority of European countries, as it
allows a unified and interrelated interpretation of human
rights, transparency, effectiveness and the concentration
of resources to the most relevant issues. In countries
having more than one Ombudsman (like Sweden, Austria,
Lithuania, Moldova) one of them holds, permanently or
on a rotation al basis, the office of head of the institu tion.
Such coordination has been missing until now in Hun-
The Fundamental Law (“The State”, paragraphs 1 to 5
of Article 30) stipulates two specialised deputies within
the single Ombudsman system (both were separate Om-
budsmen until the end of 2011). They have now taken
over the functions of the former Commissioners for Na-
tional and Ethnic Minority Rights and for Future Genera-
tions. The latter was established by the amend ment of the
relevant Act in 2007 and started operating in 2008. The
designation “Commissioner for Future Generations” is
misleading, as many countries in Europe and throughout
the world operate a separate Ombudsman for protecting
the rights of children, and the general meaning of “future
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Changes in the Institutional Context of the Ombudsman System in the Republic of Hungary in 2012
generations” refers primarily to this function. In Hungary,
however, protection of the rights of children has always
been the competence of the general Ombudsman and the
“rights of future generations” has meant in reality the
institution protecting the rights laid down in the Act on
Environment Protection. Consequently, the Commis-
sioner for Future Generations was the “green” Ombuds-
man. Therefore, the previously autonomous Ombudsmen
operated last year on the basis of the Minorities Act and
the Environment Protection Act, as the specialised Dep-
uty Commissioners do as of 1 January 2012. Their com-
petence and procedures, just like the general Ombuds-
man’s, are laid down in the Ombudsman Act (Act CXI of
2011 on the Commissioner for Fundamental Rights) [2]1.
In accordance with the Fundamental Law, a single
Ombudsman institution has been established, in which
the Ombudsman and his or her two specialised deputies
are elected for a term of six years by a two-thirds major-
ity of the Members of Parliament. The institution has
been renamed; the designation “Parliamentary Commis-
sioner for Citizens’ Rights” has been replaced by “Com-
missioner for Fundamental Rights”. More emphasis is
laid on its task to turn to the Constitutional Court for ex
post review of norms, as the possibility of actio popu-
laris ceased to exist; citizens and their organisations can
turn to the Constitu tion al Co urt on ly v ia the Government,
one-fourth of the Members of Parliament or the Om-
budsman (paragraph (2)e) of Article 24).
Similarly to other institutions of public law and fun-
damental rights, the new Fundamental Law has not di-
vested the institution of Ombudsman of its original char-
acter but left it unchanged; the Ombudsman is still an
independent institution which aims to uncover improprie-
ties endangering the enforcement of fundamental rights
and makes recommendations to the Government, public
administration or Parliament for redress. The institution,
which is now undergoing unification, is expected to be-
come more effective, to have a clearer policy and to en-
force fundamental rights in their context; also, according
to the decision of the makers of the Fundamental Law,
the institution will pay special attention to the rights and
interests of nationalities and of environment protection,
which are now represented by the specialised deputies.
At present the Ombudsman’s control does not cover the
activities of the courts and of the prosecution service
(with the exception of the investigation organs of the
Prosecution Service); neither can he or she conduct in-
quiries into private law entities unless their operation
gravely infringes the fundamental rights of many citi-
Where do I see further possibilities for improving the
protection of fundamental rights in our more and more
unified institution? In order to support the activity of the
High Commissioner for Human Rights in Geneva, the
United Nations started to build a network of National
Human Rights Institutions in the 90’s that has became a
global network by now. Previously there had not been
such an institution in Hungary; therefore, in 2010 we
submitted an application of accreditation to the coordi-
nating office of the UN Human Rights High Commis-
sioner. The application was decided favourably upon in
National human rights institutions operate in various
structures, and in Europe this task is often performed by
the Ombudsman. The activities of the institution are var-
ied but it mainly contributes to the enforcement of the
Universal Declaration of Human Rights and of the great
international treaty systems (rights of children, women,
refugees, persons with disabilities etc.) with the regular
monitoring of implementation, with uncovering the ob-
stacles and with recommendations to international or-
ganisations, governmental organs and parliaments. These
UN accredited institutions cooperate with civil society’s
rights protecting organisations. They take part in human
rights education and the gathering, classification and
processing of information on human rights. Now this
function is performed in Hungary by the unified Om-
budsman institution. Th is may prov ide an opportunity fo r
playing an intermediary role between governmental and
non-governmental organisations (NGOs) in order to es-
tablish and develop our human rights culture. Hungary
has a lot to do in order to implement UN conventions;
this task often comes second after current domestic and
foreign policy expectations and the enforcement of the
interests of va r i ous governm ent departme nt s.
3.1. Reasons for Remodelling the Hungarian
Ombudsman System
Why was it necessary to remodel the Ombudsman sys-
tem in Hungary in 2011? Previously different Commis-
sioners were established at different times, out of differ-
ent legislative intentions, and their cooperation was not
satisfactory. In Hungary it was unclear in how many and
what cases people turned to the different Ombudsmen
and to other authorities accepting complaints. Even
though the four Ombudsmen had a common Office, there
was no uniform procedure for or classification of com-
plaints, not to speak of the ones submitted to the Equal
Treatment Authority, to the Independent Police Com-
plaints Board or to the fora of public media. Until now it
has not been possible to form a comprehensive picture of
the state of human rights in Hungary from the annual or
long-term reports of several authorities or civil society
organisations, as the precondition of such a report is the
interconnection and systematic processing of databases.
In the absence of such information tendencies of devel-
1[2] Act CXI of 2011 on the Commissioner for Fundamental Rights.
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Changes in the Institutional Context of the Ombudsman System in the Republic of Hungary in 2012 115
opment cannot be seen, not even by those decision-
makers who are committed to make changes. Conse-
quently, in the process of making the new constitution
the legislator could not build on such comprehensive
Without proper information and sources that are avail-
able to everybody, the evaluations were one-sided and
biased. Now a balanced and regular flow of information
between different authorities may increase the effective-
ness and precision of legislation and decision-making.
Another problem was that the great global and Euro-
pean international treaty systems of the last twenty years
(e.g. on the rights of children, persons with disabilities or
women) do not yet have independent control organs in
Hungary that would monitor the implementation of these
international standards in our country. This would re-
quire money from the central budget and the support of
new civil society organisations having the right to access
and control. Government organs in Hungary were un-
willing to establish such independent control organs,
although the country had committed itself in these trea-
ties to do so. Also, our accession to the Optional Protocol
to the UN Convention on the Prevention of Torture and
Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment (OPCAT) had been delayed for a long time. Ac-
cession would commit Hungary to operate a national
monitoring authority within this optional international
system; said delay was already criticised in the report of
the parliamentary subcommittee which investigated the
human rights violations of 2006. In 2011, the decision
was made to accede to the OPCAT system and it was
also decided that the main institution operating the con-
trol mechanism in Hungary would be the Commissioner
for Fundamental Rights.
According to the Fundamental Law [3]2, the previous
Commissioner for Data Protection ceases to operate as a
separate Ombudsman from 1 January this year; his or her
tasks are to be performed by an independent authority
established by a cardinal Act (“Freedom and responsibil-
ity”, Article VI, paragraph 3). The previous Hungarian
system was exceptional in Europe: the protection of data
and freedom of information were not performed together
within one institution in every country, and that institu-
tion was not in every case elected by and accountable to
Parliament; on the other hand it had to be independent in
accordance with EU law. Until 31 December 2011,
however, due to their common Office, the Commissioner
for Data Protection was tied to the other Ombudsmen
dealing with completely different subject-matters. Ac-
cording to the new Act, the data protection authority is
given certain public powers, like registration or even the
power to impose heavy fines. Such powers, however, are
hardly compatible with the competence of European-type
Ombudsmen, which competence is restricted to making
recommendations. Therefore, the cardinal Act had to
establish a new authority for the exercise of these new
public powers. The regulation pertaining to the new au-
thority called National Authority for Data Protection an d
Freedom of Information, operating as of 1 January 2012,
is under reconsideration as a consequence of European
As laid down in the provisions effective as of 1 Janu-
ary 2012, the transitional provision s designate the former
Commissioner for Civil Rights, to fill the office of the
Commissioner for Fundamental Rights in the new, uni-
fied institution. I find it my duty therefore to do my best
in this new system, to the establishment of which I have
also contributed to some extent. I will endeavour to pro-
mote the successful development of the institution in
cooperation with the other (also remodelled) constitu-
tional institutions and with the specialised Deputy Com-
missioners. I presume the remaining almost two years
might be enough to form the new institution’s practices
and to make suggestions to the law-maker for the correc-
tion of practical problems. Legislative changes have af-
fected almost every part of our legal system, and they
were also adopted according to a relatively hurried
schedule, so it should not surprise us that this body of
legislation is going to produce a series of problems that
stem from internal incoherencies and which could only
be partly overcome in practice. Consequently the regula-
tions introduced as of 1 January 2012 need continuous
3.2. Unaltered Role of Protecting Fundamental
The effective Ombudsman-type protection of rights has
proved to be one of the basic cornerstones of guarantee-
ing fundamental rights since the first Ombudsman en-
tered office in the summer of 1995. In accordance with
the Fundamental Law, Parliament adopted an Act on 11
July 2011 on the unified Ombudsman system in order to
create an effective, coherent and full protection of fun-
damental rights. Based on previous provisions of the
Constitution, Article 30 of the Fu ndamental Law clarifies
that the Commissioner for Fundamental Rights performs
a general fundamental rights protection task, and that
anyone can initiate proceedings with the Commissioner.
As in the previous period, the Commissioner’s primary
task is in accordance with the classic role of Ombudsman:
he or she inquires into the improprieties relating to fun-
damental rights or has these improprieties inquired into,
and initiates general or specific measures for redress.
During the process leading to the ad option of Act CXI
of 2011 on the Commissioner for Fundamental Rights
(Ombudsman Act) the legislator considered several as-
2[3] The Fundamental Law of Hungary.
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Changes in the Institutional Context of the Ombudsman System in the Republic of Hungary in 2012
pects: first the practice of the last 15 years, secondly the
experience of the application of the previous Ombuds-
man Act, thirdly the processes of the Ombudsman-type
protection of rights, and finally examples of success in
other European countries. Due to the advantages of a
unified system, to the new features of the regulation and
to the differentiated procedural rules, the new Ombuds-
man Act (applicable as of 1 January 2012) may increase
the level of protection of fundamental rights. Further-
more, it is essential for the Commissioner to continue to
cooperate with all parties of fundamental rights protec-
tion: with the Constitutional Court, with the courts and
with civil society organisations for the protection of
Concerning information rights, it brings new possibili-
ties that the tasks and competences of the Commissioner
for Data Protection (including authority-type public
powers) have been taken over by an independent author-
ity. In the single Ombudsman model specialised Deputy
Commissioners are responsible for the special protection
of the interests of future generations and the rights of
nationalities living in Hungary, respectively. Deputy Com-
missioners have various tasks; their activities are based
on internal professional cooperation and coordination.
They monitor the enforcement of the fundamental rights
concerned, regularly inform the Commissioner on their
relevant experience, call his or he r attentio n to the d anger
of violation of rights of larger groups of natural persons,
may propose the starting of ex officio proceedings, con-
tribute to the inquiry of the Commissioner for Funda-
mental Rights, and finally they may propose that the
Commissioner turn to th e Constitutional Court.
In the future too, the Ombudsman’s activities will,
among others, focus on the protection of the rights of
individuals who are not, or not entirely capable of en-
forcing their rights. In the course of their work, Parlia-
mentary Commissioners paid special attention to the
situation of persons living with disabilities. The Om-
budsman Act gives a legal expression to this already ex-
isting role and attitude , stipulating that the Commissio ner
for Fundamental Rights, in the course of his or her ac-
tivities, has to pay special attention to assisting, protect-
ing and supervising the implementation of the UN Con-
vention on the Rights of Persons with Disabilities, espe-
cially by conducting ex officio proceedings. The situation
is much the same regarding the protection and enforce-
ment of the rights of children, where the Ombudsman has
been trying to achieve results with all legal and other
tools at his disposal since 2007 by launching special pro-
jects and promoting legal awareness. Furthermore, the
Ombudsman Act designates other social groups to the
rights of which the Commissioner for Fundamental
Rights has to pay special attention, following the rights
protection phil osop hy of prev i ous Ombudsmen.
The list of redefined and new tasks does not end here.
Up until now, there have been no uniform statistical data
on violations of fundamental rights. For the first time, the
Ombudsman Act stipulates that the Commissioner for
Fundamental Rights shall keep statistics on the violation
of fundamental rights; other organs of fundamental rights
protection (like the Equal Treatment Authority, the Na-
tional Authority for Data Protection and Freedom of In-
formation and the Independent Police Complaints Board)
are obliged to supply data as well. This will allow us to
have a comprehensiv e and true picture of the situation of
human rights and the tendencies of committed infringe-
ments in any given year.
Compared to the former regulation, the competences
of the Commissioner for Fundamental Rights have ex-
panded, in exceptional cases he now has the right to in-
quire into the activity or omission of organisations other
than authorities as well, if their activity or omission
gravely infr inges the fund amental rights of a larger group
of natural persons. In such exceptional cases the Com-
missioner may initiate proceedings with the competent
supervisory authority as a result of the inquiry. Conse-
quently, the Ombudsman Act enables the Commissioner
to act in order to protect the right to a healthy environ-
ment when this right is violated by other organisations
than authorities or by public utility providers.
The scope and nature of the classic tools and methods
of inquiry and the applicable measures have not changed
significantly. However, the Act has become more distinct
in this aspect than the previous one. The detailed regula-
tions and definitions (for instance those of authority, im-
propriety, and ex o fficio inquiries) are in accordance with
the former practice of the Ombudsman and they help a
flexible and effective interpretation of the Ombudsmans
tasks and competences. The regulation in the Act con-
cerning the competence of initiating the adoption or
amendment of rules of law is also progressive. It ensures
that the Commissioner for Fundamental Rights may
propose to the law-maker the revision of a legal regula-
tion if improprieties are established in individual cases,
unless the impropriety only occurred due to the proceed-
ings of the authority or public utility p rovider. The possi-
bility of taking parallel measu res greatly helps to prov ide
a complex solution for uncovered legal problems.
In order to redress improprieties, the Ombudsman Act
increases the effectiveness of the protection of rights by
ensuring th e possibility of new, even immediate measures.
For instance, the Prosecution Service is to be informed
when the Commissioner’s inquiry draws the conclusion
that a coercive measure has been ordered unlawfully. The
possibility that the Commissioner may now refer a peti-
tion to the prosecutor if he or she established no impro-
priety but becomes aware of circumstances pointing to
the infringement of a rule of law also contributes to the
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Changes in the Institutional Context of the Ombudsman System in the Republic of Hungary in 2012 117
redress of injuries. Based upon the Ombudsman Act and
the previous experience, the Ombudsman issued a nor-
mative instruction on the professional rules and methods
of inquiries. The Commissioners have always considered
the rulings of the Constitutional Court authoritative on
the content of fundamental rights. After the entry into
force of the Fundamental Law the Commissioner for
Fundamental Rights intends to continue this practice. As
a consequence of the constitutional changes, the institu-
tion of actio popularis, which made it possible for eve-
rybody to turn to the Constitutional Court, was termi-
nated on 1 January 2012. The Commissioner for Funda-
mental Rights is still entit led, besides the Government or
one-fourth of the Members of Parliament, to initiate an
examination of rules of law with the Constitution al Court
for their compliance with the Fundamental Law or for
determining whether they are in conflict with interna-
tional treaties. Furthermore, according to the new Om-
budsman Act and the Act on the Constitution al Court, the
Ombudsman’s inquiry or report are not preconditions of
an application to the Constitutional Court. Filing an ap-
plication for the ex post review of norms may not only be
made as a measure: the Ombudsman may exercise this
competence of his or hers upon anyone’s complaint or ex
officio, stating his reasons and requesting that the Con-
stitutional Court examine the issue. Doing so, he or she
takes on the role of a mediator, and may become a fast,
flexible and active initiator of detecting and removing
from the legal system those Acts and rules of law which
violate the Fundamental Law or international treaties on
human rights.
According to the new regulation the Commissioner for
Fundamental Rights can also act as a bridge or mediator
between the national and international rights protection
mechanisms in numerous important fields of fundamental
rights. Only the formal framework seems to be a novelty,
as Commissioners have always applied and invoked in-
ternational and European human rights standards, re-
quirements and commitments undertaken by Hungary.
The new Act stipulates further tasks; it clarifies that,
upon appointment, the Commissioner for Fundamental
Rights performs the tasks of national mechanisms in ac-
cordance with Hungary’s commitments undertaken in
international treaties. Serious preparations need to be
made, since the national preventive mechanism laid
down in the Optional Protocol of the UN Convention
against Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment (OPCAT) will be performed by
the Commissioner for Fundamental Rights as of 2015.
There is no doubt a solid b asis to build on; the pro tection
of the rights of detainees and the conducting of inquiries
into the functioning of and conditions in penitentiary
institutions has always b een attribu ted special importan ce
in the Ombudsman’s practice so far.
The new regulation, laid down in an Act of Parliament,
allows the Commissioner for Fundamental Rights to be-
come not only an esteemed member of the mechanism
for the protection of fundamental rights in Hungary but
also a responsible, central and active player who can
shape the practice of fundamental rights, and whose ac-
tivity is based on cooperation and the persuasive power
of publicity and of constitutional arguments. The Om-
budsman Act confirms the Ombudsman’s philosophy,
according to which—beyond the classical tasks of Om-
budsmen (i.e. those of conducting inquiries and issuing
recommendations in concrete cases)—the promotion of
preventive and proactive protection of rights, of legal
awareness and of communication between the parties are
also indispensable for the enforcement of constitutional-
ity in everyday social relations.
Changes are neither “good” nor “bad” in themselves.
They should be justified by their results, about which I
am optimistic. Not only the unification of the different
Ombudsman’s offices but also the very significant enlar-
gement of the Ombudsman’s competences open up wide
perspectives of development instead of the dead-ends of
the former fragmented system. However, results should
be achieved in a “suboptimal” and crisis-ridden climate.
Therefore, organisational effectiveness should be opti-
mised in a suboptimal environment, which is not easy,
but it is not impossible eith er.
We have been given quite a lot of means and tools to
fulfil our mission. These are our new competences, the
advantages of a unified management, the benefits of the
integration of the formerly fragmented fields, the help of
a civil society interested in working with us because of
our competence to turn to the Constitutional Court, the
possibility of exceptional inquiries into the fundamental
rights related improprieties of private organisations, our
widening competence in the institutional monitoring of
the implementation of international treaties as national
institutions of human rights, and mediation between do-
mestic and internation al law.
4. Relations between the Commissioner for
Fundamental Rights and Other
Constitutional Institutions Following the
Entry into Force of the Fundamental Law
4.1. The Commissioner for Fundamental Rights
and the Constitutional Court
On the basis of the Fundamental Law the Constitutional
Court continues to be a body for the performance of con-
stitutional protection, since it is the principal organ for
the protection of the Fundamental Law; its primary task
is the review of norms, in other words the examination
and annulment of rules of law which are contrary to the
Fundamental Law. Moreover, in cons titutional complaint
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Changes in the Institutional Context of the Ombudsman System in the Republic of Hungary in 2012
proceedings citizens can now initiate the rev iew not only
of rules of law but also of concrete judicial decisions.
In the new constitutional system relations between the
Hungarian Ombudsman, who performs a very important
fundamental righ ts protection function, and the Constitu-
tional Court may undergo significant changes and trans-
formations. There is no change in that the Commissioner
may not inquire into the activities or decisions of the
Constitutional Court, and the decisions of the Constitu-
tional Court are binding on the Commissioner for Fun-
damental Rights, as they are on all other organs. Tenets
and tests set out in the decisions of the Constitutional
Court on certain constitutional principles an d fundamental
rights continue to be autho ritative for the Commissioner.
It is a significant change, however, that as of 1 January
2012 only certain persons and organs may turn to the
Constitutional Court. Besides the Government or one
fourth of all Members of Parliament, the Commissioner
for Fundamental Rights may also initiate a review of the
conformity of rules of law with the Fundamental Law if
he or she considers that the rule of law is contrary to it.
We find it necessary to mention this because the new
regulation on the Constitutional Court does not ensure
actio popularis any more, i.e. it does not allow that citi-
zens without a legal interest initiate the review of the
constitutionality o f a rule of law.
On the basis of an inquiry conducted upon a concrete
complaint and following the establishment of a situation
infringing a fundamental right, the Ombudsman, as in the
past, still has the possibility to file an applicatio n with the
Constitutional Co urt in order to request the ex post (after
adoption) review of the contested regulation. As a result
of the narrowing of the right to file petitions there is a
steady increase in the number of those complaints arriv-
ing to the Commissioner where the proceedings of the
Ombudsman are not initiated in connection with particu-
lar cases involving an author ity but complainants request
him to turn to the Constitutional Court in connection with
a rule of law. According to the Ombudsman Act the
Commissioner also has the possibility to file petitions
with the Constitutional Court directly on the basis of
submitted complaints without conducting proceedings or
inquiries. For filing direct petitions one should consider
especially the gravity of the existing fundamental rights
violation, the number of injured persons and the group(s)
these persons belong to.
Moreover, the Commissioner also has the right to ini-
tiate a review of the constitutionality of rules of law
which have already been adopted and published but not
yet entered into force. Furthermore, if there is prima fa-
cie evidence that the rule of law is contrary to the Fun-
damental Law, the Ombudsman may request that the
Constitutional Court temporarily suspend its entry into
force. This may be done if it is necessary to take imme-
diate measures to avoid serious and irreparable damage
or disadvantage, or to protect the Fundamental Law or
legal certainty.
The Act on the Constitutional Court [4]3 gives the
right to the Commissioner for Fundamental Rights to
initiate—besides one fourth of all Members of Parlia-
ment, the Government, the President of the Curia and the
Prosecutor General—that the Constitutional Court ex-
amine whether rules of law are in conflict with interna-
tional treaties. Ombudsmen had the same right under the
previous Ombudsman Act to initiate these special types
of proceedings with the Constitutional Court, but the new
circumstances we pointed out earlier, i.e. the narrowing
of the circle of those who may submit petitions, may
render the application of this instrument even more sig-
nificant. The Commissioner for Fundamental Rights may
initiate directly, on the basis of a petition submitted, that
the Constitutional Court establish not only that a rule of
law is contrary to the Fundamen tal Law, but also that it is
contrary to an international treaty. Such relevant interna-
tional treaties are for example the European Convention
on Human Rights or the relevant case-law of the Euro-
pean Court of Human Rights interpreting the Convention.
Other instruments belonging to this category are the
Charter of Fundamental Rights of the European Union
and several important human rights conventions, in par-
ticular the Convention on the Rights of the Child or the
Convention on th e Rights of Persons with Disabilities.
Another change is that in the new system the review of
local government decrees is not done in principle by the
Constitutional Court but by ordinary courts. If the com-
plainant requests the Commissioner to initiate proceed-
ings of the Constitutional Court in connection with a lo-
cal government decree which is contrary to an Act, then
—considering whether the decree is directly contrary to
the Fundamental Law or not—the Ombudsman may start
an ex officio inquiry in the given case, and within its
framework may ask the competent Government Office to
conduct an inquiry. Pursuant to the Fundamental Law, if
the Metropolitan or County Government Office finds that
the local government decree or any of its provisions is
contrary to a rule of law, it may apply to a court for a
review of the local government decree. Thus, the Com-
missioner does not have the right to go to court directly
in such cases.
We also have to point out that pursuant to the Act on
the Constitutional Court neither the Commissioner, nor
other organs or persons have the right and possibility any
longer to initiate proceedings for the establishment of an
unconstitutional situ ation which is manifested in a failure
to act. The establishment of a failure by th e law-maker to
act is now exclusively in the competence of the Co nstitu-
3[4] Act CLI of 2011on the Constitutional Court.
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Changes in the Institutional Context of the Ombudsman System in the Republic of Hungary in 2012 119
tional Court; it may do so ex officio, but external initia-
tives are excluded by the Act. In connection with the
above it is also worth mentioning th at on the basis of the
Act on the Constitutional Court the Commissioner for
Fundamental Rights, unlike under the previous regulation,
may not request an abstract interpretation of the Funda-
mental Law: only Parliament or its committees, the Presi-
dent of the Republic, or the Government have the right to
initiate such proceedings.
4.2. The Commissioner for Fundamental Rights
and the Courts
In accordance with the classical institutional model of the
Ombudsman, the Ombudsman Act does not allow the
Commissioner for Fundamental Rights to inquire into the
activities of the courts. The Act further stipu lates that the
Commissioner for Fundamental Rights may not proceed
in cases where court proceedings have been started for a
review of the decision or where a final court decision has
been rendered. The regulation laid down in the Act is
consistent: not even in exceptional proceedings does it
allow the Commissioner to conduct inquiries into the
activities of the courts, into the contents of judicial deci-
sions or into procedural issues.
Consequently, like under the previous legislation, the
Commissioner has no competence for inquiry in the case
of complaints where the complainant contests the content
of a judicial decision or the proceedings of the court, or if
the complainant started judicial proceedings or judicial
proceedings have been started by another party in the case.
It is important, however, to stress here that pursuant to
the Ombudsman Act the Commissioner still has compe-
tence to examine in-merit the matters raised in com-
plaints submitted against the activities of cou rt bailiffs, in
particular against county bailiffs and independent court
bailiffs, within the limits of competence established in
the practice so far. Here it has to be mentioned that the
Commissioner may not act in matters explicitly referred
to the competence of the courts by a rule of law, nor may
he act in matters where the parties availed themselves of
the legal remedies in court, such as the submission of an
objection to execution.
In connection with submissions related to the courts
the Commissioner has a very important role to provide
information: in his or her letter refusing the starting of an
inquiry he or she provides detailed information on the
available legal remedies, and, where necessary, on the
possibility of legal aid. In judicial proceedings the Com-
missioner may not represent the complainants.
If analysis of the submitted complaint shows that the
conditions required for the sub mission of a constitutional
complaint may be met, then in his or her response the
Commissioner for Fundamental Rights, apart from re-
jecting the complain t for lack of co mpetence, may inform
the complainant about the conditions for submitting a
constitutional complaint to the Constitutional Court on
the matter at hand. At the same time it is essential to
mention that in the constitutional complaint proceedings
the Commissioner may not file th e application or “repre-
sent” the complainant.
It might occur that the submitter of a petition objects
exclusively to a rule of law (or its provision) concerning
the procedure or functioning of the courts. In this event
the Commissioner—since not a concrete, specific judicial
decision is at issue—may consider whether he or she
should request the Constitutional Court to examine the
given regula t i o n.
Finally, mention must be made of a peculiar legal in-
stitution, the letter of amicus curiae. In exceptional and
justified cases it is possible for the Commissioner, con-
sidering the example of legal institu tions well-known an d
utilised in international legal practice and legal literature
(like the amicus curiae and Gutachten), to explain his
position to the court on certain objective issues of legal
interpretation not related to the case at hand or the deci-
sion made therein. In the practice of earlier Ombudsmen
this has already been done in a few cases, and the new
Ombudsman Act does not exclude this possibility either.
4.3. The Commissioner for Fundamental Rights
and the Prosecution Service
As a consequenc e of the constitutiona l legal status of the
Prosecution Service, our cooperation with that institution
mainly consists of the handling of complaints related to
proceedings of the police. Pursuant to the Ombudsman
Act, investigating authorities, and in particular organs of
the Prosecution Service that conduct investigations, be-
long to those organs the activities of which may be in-
quired into by the Commissioner.
Our Office receives numerous complaints in which
complainants contest the legality of measures taken by
the police in the framework of criminal proceedings. In
many cases complainants turn to us because as suspects,
accused persons or victims in criminal proceedings they
are treated by the police in an inequitable manner, or in
extreme cases they even suffer physical violence.
If there is a well-founded suspicion that a crime has
been committed, the Commissioner is bound by the
Ombudsman Act to report it to the competent authorities.
The Commissioner, in the course of criminal proceedings
initiated by him or her and up until charges are brought,
may at any time use his or her right to inquire into the
activities or omissions of the investigating authority.
Consequently, if in connection with the investigation or
the lack of it a fundamental rights infringement occurred
or there is an imminent danger thereof, the Commis-
sioner may request the starting of an investigation or the
continuation thereof. At the initiative of the Commis-
Copyright © 2012 SciRes. BLR
Changes in the Institutional Context of the Ombudsman System in the Republic of Hungary in 2012
Copyright © 2012 SciRes. BLR
Nevertheless, important changes have been affected as
well. First of all, instead of the former fragmented system
of four Ombudsmen, now we have a unified Ombudsman
system with more differentiated procedural rules and
stronger powers. One new feature is the constitutional
complaint, which—after the termination of the actio
popularis—is the best way for individuals and civil soci-
ety as a whole to raise the issue of constitutionality of
rules of law through the intermediation of the Ombuds-
man, thereby partially setting the agenda of the Constitu-
tional Court. A second new procedure is the exceptional
inquiry, empowering the Ombudsman to conduct inquir-
ies into the activities or omissions to act of private or-
ganisations if they gravely infringe the fundamental
rights of a great number of natural persons. As of 2015
another new competence of the Ombudsman will be the
performance of tasks related to the national preventive
mechanism, to prevent torture and other cruel, inhuman
or degrading treatment or punishment. Moreover, as a
National Human Rights Institution the Ombudsman is
also responsible for human rights education and the
gathering, classification and processing of information on
the human rights situation in the country.
sioner, the Prosecution Service is bound to examine
whether it is appropriate to quash the decision rejecting
the denunciation or terminating the investigation.
There are intensive contacts and cooperation with the
Prosecution Service in the course of those inquiries of the
Ombudsman that concern the activities of penitentiary
institutions and the enforcement of th e rights of detainees,
since the Prosecution Service exercises supervision over
the legality of the operation of penitentiary institutions.
The Prosecution Service is a strategic partner of the
Commissioner for Fundamental Rights in another respect
as well. The Act on the Prosecution Service [5]4 stresses
that prosecutors are, within the framework of their obli-
gation to protect the public interest, guardians of the
legality of proceedings conducted by the authorities and
other organs applying the law. In this role of theirs they
may initiate or start conten tious and non-con tentious pro-
ceedings and other proceedings regulated in an Act, or
participate in such proceedings. If an infringement or
unlawful failure to act comes to the knowledge of the
Prosecution Service, it supervises the legality of those
final or enforceable decisions, official measures and pro-
ceedings of authorities and of other organs applying the
law (with the exception of the courts) which have not been
reviewed by a court. It exercises a supervision of legality
over the proceedings, decisions and functioning of or-
gans and organisations defined by an Act and contributes
thereto that the administration of justice be accessible
also to those persons who are not able to enforce their
rights owing to their disabilities, age, situation or to any
other reason. By reason of all these functions of the Pro-
secution Service it is of crucial importance that the Com-
missioner for Fundamental Rights co-operate t herewith.
As a result of the new Ombudsman regulation, there is
a real opportunity for clearer, more coherent Ombuds-
man policy and practice, for a more unified interpretation
of human rights, and for a concentration of resources on
the most relevant issues. These all make the single Om-
budsman more efficient and effective, and may increase
the level of fundamental rights protection.
In fact, if the institution makes good use of the tools
and instruments at its disposal, and in spite of the subop -
timal environment characterised by the global crisis, it
can become a fast, flexible and active initiator of detect-
ing and removing from the legal system the rules of law
that are contrary to the Fundamental Law or intern ational
treaties. Therefore, the Ombudsman institution can fulfil
the function of a mediator within the Hungarian con stitu-
tional system as well as between the national and inter-
national rights protection mechanisms, and, by doing so,
it can become an important actor in the system of checks
and balances in Hungary.
5. Conclusions
Since the elections in 2010, the Fidesz-KDNP govern-
ment, having a two-thirds majority in Parliament, has
made rapid and significant changes in almost all areas of
the Hungarian legal system. The adoption of a new Con-
stitution (the so-called Fundamental Law) and a new Om-
bud sman Act brought important modifications in the Om-
budsman institution and in its place in the Hungarian
constitutional system. We have to stress, however, that
the continuity of the institution has not been essentially
affected by these modifications, since its basic function
of protecting fundamental rights has not changed, its in-
dependence and impartiality are still basic requirements,
and the classical Ombudsman functions like receiving
complaints, conducting inquiries, making recommenda-
tions, using the force of persuasion and publicity, and ap-
plying to the Constitutional Court have remained un-
[1] “Act LIX of 1993 on the Parliamentary Commissioner for
Civil Rights,” 1993.
[2] “Act CXI of 2011 on the Commissioner for Fundamental
Rights,” 2011.
[3] “The Fundamental Law of Hungary,” 2012.
[4] “Act CLI of 2011 on the Constitutional Court,” 2011.
[5] “Act CLXIII of 2011 on the Prosecution Service,” 2011.
4[5] Act CLXIII of 2011 on th e Prosecution Serv ice.