Roma Under Hungary's "Status Law"

10 July 2002

Lilla Farkas¹

Hungary's "Status Law", adopted over the protests of many, has been intensely criticised domestically and internationally on a number of grounds. Below, one prominent Roma rights activist argues that we do not yet know the impact of the status law in terms of empowering Roma. The article is included here, in an issue devoted to "Fortress Europe" concerns, due to the cross-border implications of the "Status Law" in the context of Europe's evolving border regime.

Since the political changes of1989, successive Hungarian governments have been haunted by questions regarding ttheir state's relationship to ethnic Hungarians in other countries. On June 19, 2001, the Hungarian Parliament adopted Act 62 of 2001 – the "Status Law" – which asserts an explicit responsibility for ethnic Hungarians abroad. This was the result of a theoretical debate about what constitutes a nation,² as well as a compromise of sorts between two prevailing policy strategies: secure maximum rights in the countries where ethnic Hungarians reside, or promote resettlement in Hungary.³ The conservative government argued that legislation on this matter was needed in preparation for accession to the European Union. The ways in which the law may affect Hungarian-speaking Roma in countries neighbouring Hungary, specifically Hungarian-speaking Roma in Romania, are as yet not fully clear.

To a great extent, minority protection in Europe has traditionally been a matter of bilateral co-operation between states. Recently, a European instrument on minority protection has been adopted – the Framework Convention for the Protection of National Minorities – but this treaty does not provide a definition of national minorities.⁴ The Status Law, on the other hand, does provide a precise legal definition of who may be considered an ethnic Hungarian.⁵ Persons who identify as Roma, as well as persons who identify as Romanian, may meet the requirements of this definition. So will Hungary become the first nation state to advocate Roma rights as part and parcel of the protection it secures for kin-minority living in other countries?

As an EU member state, Hungary would be bound to ensure freedom of movement to workers and services from other member states and to enforce common immigration rules. Under the Europe Agreements, the state must ensure that citizens of other EU member states are granted the right to self-employment once they have fulfilled the requirements of Hungarian immigration law. However, each member state establishes its own rules for immigration and nothing precludes efforts to attract and allow a specific type of worker or visitor. Thus, Hungary would have ample scope to shape its immigration policy regarding countries with sizeable ethnic Hungarian minorities.⁶

Could Roma be included in the scope of the Status Law? In Romania, almost all churches that are not Orthodox Christian are described as "Hungarian". Bearing in mind their under-representation in official figures,⁷ Mr István Haller, an ERRC local monitor in Romania, estimates that the approximately 150,000-160,000 Roma who belong to these churches could qualify as status-Hungarians. Similarly, many of the 200,000 Roma in Transylvania may identify themselves first and foremost as Hungarians for reasons of language and culture.⁸

In 1996, Hungary and Romania signed the Treaty of Understanding, Co-operation and Good-Neighbourliness, which pays particular attention to the rights of the Romanian minority in Hungary and the Hungarian minority in Romania. Aiming to protect and promote the ethnic, cultural, linguistic and religious identities of these two minorities, the states treat selected soft law measures under Article 15(1)(b) as if they carry genuine legal obligations.⁹ Article 15(9) requires that state parties refrain from involuntary assimilation; Article 15(10) requires that implementation of these provisions be monitored by an inter-governmental committee. Article 21(1) requires that states resolve any conflict arising from interpretation of the Treaty through direct consultation or negotiation. With the Status Law, Hungary has officially legislated these provisions. Persons holding a Hungarian Identity Card – including Roma – now have an institutional link enabling them to seek protection under the above provisions.

How applications for Hungarian Identity Cards will be processed is as yet unknown, and it seems probable that Romanian-born Roma who take up residence in Hungary will experience similar levels of discrimination as Roma who are natives of Hungary, if not in fact a higher degree of adverse treatment. However, given the protection problems regularly facing Roma, the possibility for creating a bond to another state might seem particularly attractive. The social and cultural rights provided under the Status Law might also encourage association with Hungary.

One Hungarian commentator claims that the Status Law is an effort at self-census intended to influence the internal politics of neighbouring states with sizeable ethnic Hungarian populations.¹⁰ On this view, the registration of citizens who voluntarily identify themselves as Hungarian would improve the visibility and organisation of the Hungarian minorities. The greater the number of registered ethnic Hungarians, he reasons, the greater their influence, and the greater the amount of protection provided by bilateral agreements.

The implicit goal of solidifying organisation on ethnic lines might lead one to speculate on how Roma rights activists could utilise the Status Law. Following recent elections, however, the Hungarian government's attitude toward the Status Law is likely to change. The incoming coalition government has not stated an intention to revoke the Status Law, but officials have promised to bring it in line with international obligations.¹¹ An opportunity to extend rights to Roma might be missed. If status-building measures indeed go forward, Roma must be included in the process.

Endnotes:

1. Lilla Farkas is a staff attorney at the Hungarian Helsinki Committee, presently an LLM candidate at King's College, London.
2. See Kis, János, "Státustörvény - Magyarország válaszúton" ("Status Law - Hungary at the Crossroads"), Élet és Irodalom, 2002/10.
3. See Papp, Imre, "Státusjogok és idegenrendészeti kötelességek", ("Status Rights and Immigration Duties"), Fundamentum 2000/3.
4. Significant international political players, for example NATO, OSCE and the EU, have viewed bilateral treaties as the means to stabilise Central and Eastern Europe. The Framework Convention (Article 2) "promotes the principles of good neighbourliness, friendly relations and co-operation among states. Friendly inter-state relations are indeed nowadays unanimously considered as a precondition for peace and stability in Europe."
5. The Status Law promises benefits in the fields of education, science and culture, health and social security, as well as travel and work. Foreign nationals must fulfil certain requirements in order to claim right to these benefits. According to its Rationae Persona (Article 1), the Status Law applies to those who i) identify as ethnic Hungarians, (ii) reside in Croatia, Yugoslavia, Romania, Slovenia, Slovakia or Ukraine; (iii) have not voluntarily renounced their Hungarian nationality; (iv) have no permission permanently to reside in Hungary and (v) are not expelled, or pending charges for an intentional crime. It also applies to the above-defined persons' non-ethnic Hungarian spouses and dependant minors sharing a common household. The Ministry of Interior's Central Office of Data, Registration and Elections may issue Hungarian Identity Cards (not to be confused with the Hungarian ID cards held by Hungarian citizens) - qualifying the holder as a "status-Hungarian" under the law - to a person who (i) has declared membership in the Hungarian national community by applying for the card; (ii) speaks Hungarian or (iii) is registered by an ethnic Hungarian organisation or church in his or her home state (see Article 4 of the Status Law).
6. While seeking EU membership, Hungary has already taken certain exceptions to EU regulations. For example, Hungary imposed visa requirements on Russian citizens in 2001 referencing Council Regulation 574/99 determining the list of third countries whose nationals must be in possession of visas when crossing EU external borders. Although Romania and Yugoslavia are also on this list, Hungary has not added a visa requirement for citizens of these states, both with sizeable Hungarian minorities.
7. In the last census less than half million Romanians identified themselves as Roma, whereas estimates put their real number closer to two million.
8. Mr Haller provided these estimates in correspondence with the author.
9. Article (1)(a) of the Treaty of Understanding, Co-operation and Good-Neighbourliness between Hungary and Romania states: "When regulating the rights and obligations of national minorities living in their territories, the Contracting Parties undertake to apply the Council of Europe's Framework Convention on National Minorities, unless their domestic legislation contains provisions that are more favourable with regard to national minorities." Article 15(1)(b) of the same treaty states: "With the exception of provisions made in part (a) of Article 15(1), with a view to promoting the protection of the ethnic, cultural, linguistic and religious identity of the Romanian minority in Hungary and the Hungarian minority in Romania, the Contracting Parties will implement the provisions determining the rights of these persons as legal obligations, in the way they are contained in the relevant instruments of the UN, the OSCE and the Council of Europe [...]." (Unofficial translation by the author)
10. See Húshegyi, Gábor, "Gyarmatok és alattvalók törvénye" ("The Law of Colonies and Subjects"), Élet és Irodalom 2001/49.
11. Upon a Romanian request to examine the compatibility of the Status Law with European standards and public international law, the Council of Europe's Venice Commission (European Commission for Democracy through Law) found that the Status Law failed to comply with the following principles of international law: (i) the territorial sovereignty of states; (ii) the principle of pacta sunt servanda (with specific reference to bilateral treaties Hungary concluded with neighbouring states); (iii) friendly neighbourly relations and (iv) the prohibition of discrimination (preferential treatment by kin-State shall be limited to education and culture). See the Venice Commission's report on the Status Law, at: www.venice.coe.int.