Hungary - 2012
Does the law foresee the shift of the burden of proof in civil / administrative procedures? Are there problems of implementation reported by independent authoritative sources?
- Code:
- RED13
- Key Area:
- Anti-discrimination Legislation & Implementation
- Strand(s):
- Discrimination, Equality
| Short Answer |
Yes. |
| Qualitative Info |
Within the Hungarian legal framework, discrimination cases differ from other cases regarding the burden of proof.
In disputes other than discrimination cases concerning all grounds, the burden of proof lies on the party alleging the facts. In discrimination cases, according to the Equal Treatment Act:[1] ‘(1) In procedures initiated because of a violation of the principle of equal treatment, the injured party or the party entitled to assert claims of public interest must prove that a) the injured person or group has suffered a disadvantage, and b) the injured party or group possesses characteristics defined in Article 8.[2] (2) If the case described in Paragraph (1) has been proven, the other party shall prove that a) it has observed or b) in respect of the relevant relationship was not obliged to observe, the principle of equal treatment.’ However, the article makes clear that the provisions ‘shall not apply to criminal procedures and to procedures of petty offences’.
As for the specific rules for admissible evidence in discrimination cases, the method of situational testing should be mentioned.[3] This feature was introduced by the Government Decree on the Equal Treatment Authority,[4] and used only for the procedures of the Equal Treatment Authority: ‘
The Authority may conduct tests in order to check compliance with the obligation of equal treatment. During such testing, the Authority involves other persons that are different regarding their position, characteristics or attributes … but are otherwise similar and puts them into an identical situation regarding the conduct, measures, condition, omission, instruction or practice …or the person drawn under the procedure, and examines the disposition of the person drawn under the procedure regarding compliance with the obligation of equal treatment.’
[1] Equal Treatment Act, Article 19, available at http://www.egyenlobanasmod.hu/data/Act_CXXV_2003%20English.pdf (Date of Access: 13.12.2011). [2] Article 8 of the Equal Treatment Act contains the list of grounds: a) sex, b) racial origin, c) colour, d) nationality, e) national or ethnic origin, f) mother tongue, g) disability, h) state of health, i) religious or ideological conviction, j) political or other opinion, k) family status, l) motherhood (pregnancy) or fatherhood, m) sexual orientation, n) sexual identity, o) age, p) social origin, q) financial status, r) the part-time nature or definite term of the employment relationship or other relationship related to employment, s) the membership of an organisation representing employees’ interests, t) other status, attribute or characteristic. [3] Iványi, Klára (ed.): A tesztelés hazai és nemzetközi gyakorlata. Budapest, NEKI kiadványa, 2004. [4] 362/2004. (XII. 26.) kormányrendelet az Egyenlő Bánásmód Hatóságról és eljárásának részletes szabályairól (Government Decree No. 362/2004 on the Equal Treatment Authority and the Detailed Rules of its Procedure).
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| Groups affected/interested | |
| Type (R/D) | Anti-semitism, Anti-roma/zinghanophobia |
| Key socio-economic / Institutional Areas | Anti-discrimination |
| External Url | |
| Situation(s) |
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