The regulation of the constitutional right to petition, the institutional systems for reporting abuse, and guarantees for the protection of whistleblowers are all included in the new law on complaints, public interest disclosures, and rules related to reporting abuse. It was passed in an effort to meet obligations of compatibility with European Union law.
On Tuesday, the House passed the legislation with 118 in favour, 23 against, and 24 abstentions. It has retained substantive parts of the 2013 law on complaints and public interest disclosures.
The 2013 law was created in order to ensure legal compliance and provide protection for individuals who report wrongdoing, such as corruption, within their organisations or the public sector. The recently passed law establishes several new institutions and provisions, including:
- The creation of an electronic system for protected disclosures run by the Commissioner for Fundamental Rights, also known as the Ombudsman. This system allows individuals to report their concerns in a secure and confidential manner.
- A framework for employees to report wrongdoing or abuse, and also creates protections for employees who make such reports.
- Protections for whistleblowers, including providing legal representation for whistleblowers and a ban on retaliation against them.
- The law also requires that public sector institutions establish a system for receiving and handling complaints from the public.
Under the EU directive, companies with at least 250 employees in the private sector must allow their employees to report violations they may have experienced. They must operate an appropriate communication channel and investigate reports. Companies with fewer than 250 employees, but at least 50 employees, must create a joint internal reporting system, while companies with fewer than 50 employees are not subject to any such obligation.
An internal reporting system for abuse must also be established almost everywhere in the public sector, but municipalities with fewer than 10,000 residents or institutions with fewer than 50 employees are exempt. The proposal also allows multiple municipalities to share the operation of their system.
A so-called separate reporting system for abuse is also required by the new law. A state agency must be designated to receive external reports. It also allows someone to make a report in the public interest to protect the Hungarian way of life; and will take effect on the sixtieth day following its promulgation.
The law defines a whistleblower as anyone who discloses information about illegal or unethical activities within their workplace, and establishes a framework for reporting and investigating such disclosures.
In addition to the protections, the new piece of legislation also sets out a number of procedural requirements for reporting and investigating disclosures. For example, whistleblowers are required to report their concerns in writing, and must provide a detailed description of the alleged criminal or unethical activity.
To summarise specifics of the law stated in the draft law published by the Parliament:
- Employers are prohibited from taking any adverse action against employees who make a disclosure in good faith regarding an unlawful act or an act that endangers public interest.
- Employers must establish a procedure for receiving and investigating disclosures made by employees and must inform employees of the existence of this procedure.
- Public interest disclosures may be made to a designated official or body, or to a superior at the employee’s workplace.
- The Act establishes a protected electronic reporting system for disclosures made to the Commissioner for Fundamental Rights.
- The Act requires public officials to investigate complaints within their competence and take measures to remedy any identified irregularities.
- The Act provides for the possibility of initiating legal proceedings to seek protection against retaliation for making a disclosure in good faith.
- The Act creates the position of ‘ombudsman for the protection of whistleblowers’, who is responsible for providing advice and assistance to whistleblowers, conducting investigations into retaliation claims, and making recommendations for the improvement of whistleblower protection.
The legislative text lists in detail the new categories in which employees can make reports either in the ‘internal abuse reporting system’ or in the newly designated separate ‘abuse reporting system’. These are as follows:
- Activities that question the fact declared in the National Creed of the Fundamental Law that nationalities living in the country are part of the Hungarian political community and constitutive factors.
- Systematic activities that absolve people from crimes committed during the Nazi and communist dictatorships or that downplay these crimes.
- Acts that obstruct the respect and use of our national symbols—Hungary’s coat of arms, flag, and anthem.
- Doubting the constitutionally recognised role of ‘marriage and family’ in the Fundamental Law, that is, that marriage is only possible between a man and a woman, and that the mother is female, and the father is male.
- Doubting the right of children to proper physical, mental, and moral development and their right to self-identity based on their sex.
From the items listed above, the first three can already fall under the purview of law enforcement, as the protection of minorities is also ensured by a separate law. For example, violence against members of the community is also punished by the Criminal Code. Denial of the crimes committed during Nazi and communist dictatorships can already result in imprisonment. As for the desecration of national symbols, such as the anthem, the national flag, and the Holy Crown, these are also punishable according to the Criminal Code.
In addition, in the future, reports can be made either anonymously or by name regarding the questioning of the constitutionally recognised role of ‘marriage and family’ in the interest of the public good related to protecting the Hungarian way of life.