MDAC has been working in Hungary since its inception in 2002.
There are over 67,000 adults with disabilities in Hungary who are deprived of legal capacity. This is a huge number compared with other similarly-sized countries. At the end of 2009 the then parliament voted on a new Civil Code which reformed the legal capacity laws. The highlights were a ban on plenary guardianship, and the introduction of supported decision-making, which are advances towards autonomy and independence of persons with disabilities. However, a (then) opposition member of parliament submitted a case to the Constitutional Court arguing that the law should not come into force because local governments had not had enough training. Unfortunately, the Constitutional Court agreed, and the law never came into force.
There was a change of government in May 2010 and despite the new government’s stated commitment to law reform, it has not engaged with civil society organisations, and as a result the proposals are wholly inadequate. This new Civil Code eventually has not come into force.
Approximately 15,000 people with intellectual disabilities and 8,000 people with psycho-social (mental health) disabilities are warehoused in large residential institutions. Previous laws set a deadline of 1 January 2010 for transforming these institutions, but there was no action at all. Instead, institutions were modernised or enlarged, completely opposite of respecting people’s right to live in the community.
In January 2011 Hungary ratified the Optional Protocol to the Convention against Torture (OPCAT).
According to law, the State is not obliged to provide inclusive education for children with disabilities but there are a few isolated initiatives. The majority of schools are neither legally nor physically accessible for all.
The right to political participation is particularly problematic in Hungary. The current constitution denies the right to vote for 67,000 people without full legal capacity. The new constitution changes this, saying that although every adult Hungarian has the right to vote, a court can remove the right if a person lacks mental ability, which does not comply with international law.
Strategic litigation: Gajcsi v. Hungary: We are concerned at the ease with which people are involuntarily detained in psychiatric hospitals in various States: Hungary is no exception. To challenge this practice we therefore helped a client lodge a claim before the European Court of Human Rights. We argued that his detention for three years was based on superficial and insufficient judicial reasoning, and therefore breached the European Convention on Human Rights (ECHR). The case - Gajcsi v. Hungary - was successful and resulted in the Hungarian government acknowledging weaknesses in the judicial process. We continue to work with the judiciary on the implementation of this decision and offer training on ECHR standards relating to court review of involuntary detention.
Kiss v. Hungary: The applicant was placed under partial guardianship and therefore he was deprived from his right to vote. The European Court of Human Rights found that the guardianship serves a lawful purpose but it cannot accept that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation. Indeed, while the Court reiterates that this margin of appreciation is wide, it is not all-embracing.
Hungarywas the first EU country to ratify the UN Convention on the Rights of Persons with Disabilities in 2008. MDAC is advocating for implementation, especially on ensuring that the government establishes an independent body to monitor the implementation. One of the key areas of implementation is legal capacity, and MDAC has engaged in intensive advocacy at governmental level. In September 2010 MDAC and other NGOs submitted a comprehensive shadow report to the United Nations Committee on the Rights of Persons with Disabilities.
During Hungary’s presidency of the EU from January to June 2011, MDAC outlined its wish list for Hungary’s leadership, including making progress on the adoption of a horizontal EU anti-discrimination directive, advocating for Hungary’s ratification of the OPCAT, MDAC has sent a letter to all Hungarian MPs claiming for the abolishment of the provision of the new constitution which states that persons with restricted capacities can be deprived from their right to vote by the court. In April 2011 MDAC held a side event at an EU conference in Budapest on the rights with disabilities, and issued a briefing paper highlighting the gap between rhetoric and practice.
In 2004, MDAC used its research findings into the use of cage beds to seek a legal ban on their use in all institutions. This was successful in Hungary, although they are still used in Austria, the Czech Republic, Slovakia, Croatia and other countries.
Capacity-building: MDAC held several seminars during the past years concerning the right to legal capacity.
Research and monitoring: In 2010 MDAC spent considerable time and effort coordinating the disability caucus responsible for designing the shadow report which was submitted to the UN Committee on the Rights of Persons with Disabilities in September. Hungary is the first country where NGOs submitted their shadow report before the government’s State report.
MDAC’s 2007 report Guardianship and Human Rights in Hungary put the flaws of the legal capacity system on the human rights map, highlighting how laws fail to comply with international human rights standards. MDAC’s report in 2005 Liberty Denied raised concerns about fair trial rights for people with mental disabilities in the criminal justice system. On the basis of this report we have sought legislative amendments to the Criminal Code. Its sister report Prisoners or Patients? described human rights violations in Hungary’s only forensic psychiatric hospital/prison. We are advocating for better human rights protection for this neglected population.