a) Hungary / b) Constitutional Court / c) / d) 02-05-2006 / e) 1075/B/2004 / f) / g) Magyar Közlöny (Official Gazette), 2006/5 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Certainty of the law.
Fundamental Rights - Equality - Criteria of distinction - Social origin.
Fundamental Rights - Civil and political rights - Right of residence.
Fundamental Rights - Civil and political rights - Non-retrospective effect of law.
Fundamental Rights - Economic, social and cultural rights - Right to housing.
Keywords of the alphabetical index:
Flat, owner, public / Squatter, residence, right / Residence, discrimination.
There is no violation of the law if a decree of a local authority prohibits entering into a tenancy agreement with a person who violated tenancy law at the owner's expense.
I. A petition challenged Decree no. 7/2001 (6 March) on the renting of flats owned by the local authority and on other social duties relating to residence of the local representative body of Debrecen. The petition requested the annulation of a paragraph, which stipulated that no tenancy agreement could be signed with a person who qualified as a squatter or was not entitled to the use of the flat. The petitioner listed several reasons to substantiate the unconstitutionality of the debated paragraph. He alleged that there was a violation of the prohibition of discrimination, embodied in Article 70/A of the Constitution, in that the prohibition contained in the decree extended to bona fide occupiers, and that the decree was discriminatory towards Roma, who belong to the poorest layer of society. For this reason, in the petitioner's opinion, Act CXXV of 2003 on the promotion of the equality of chances was also violated. The petitioner also alleged that the decree violated the prohibition of ex post facto laws, because the legal consequences of the decree also affected behaviour prior to the entering into force of the decree. For this reason, and because of the uncertain normative content, the decree violated the principle of democracy guaranteed by Article 2.1 of the Constitution.
II. The Constitutional Court first examined the relationship between the decree and the relating legal provisions and stated that Debrecen's local representative body drafted the debated decree within the framework of Act LXXVIII of 1993 on the renting of flats and premises and the rules of their alienation. According to the Act, the conditions of renting flats owned by the local authority is regulated by a decree of the owner, which is the local authority in this case. This power of regulation is naturally extended to defining who could not be a tenant of the flat. According to the Constitutional Court, there is no violation of the law if the decree of the local authority prohibits entering into a tenancy agreement with a person who violated tenancy law at the owner's expense, which is the local government in this case.
The Constitutional Court recalled that on the basis of Article 9.1 of the Constitution, public property also needed to be protected. Even Decision no. 71/2002 of the Constitutional Court pointed out that a person without a flat could not solve his tenancy problems at the expense of the local authority.
The judges of the Constitutional Court did not find it discriminatory that the decree did not differentiate between a bona fide occupier and a squatter. On the basis of the practice of the Constitutional Court, discrimination occurs when the subjects are not equal before the law. Since the decree does not differentiate between any occupiers in particular, no discrimination can be found. In relation to the debated provisions of the decree, it can be said that they contain identical regulations for all subjects, therefore there is no violation of either Article 70/A of the Constitution or of the Act on the promotion of the equality of chances.
The Constitutional Court also rejected the petitioner's allegation that the decree violated the constitutional prohibition of ex post facto laws. On the contrary, the Court pointed out that the behaviour referred to in the decree already had been considered to be against the law prior to the entering into force of the decree. There was no violation of the principle of democracy in relation to the use of terms of the decree as all terms in question could also be found in the Act.
Two judges of the Constitutional Court did not agree with the decision of the Court, and they summed up their views in dissenting opinions. Mihály Bihari was of the opinion that the decree was unconstitutional because it excluded persons from the possibility of renting a flat without the possibility of being considered individually or severally, if they were considered to be squatters or not entitled to the use of the flat. In this way, the ones who were excluded were the ones who were in the most disadvantaged position socially, and thus discriminated against. With respect to all of the above, the debated paragraph of the decree should have been annulled.
András Bragyova, who handed in a dissenting opinion, stated that the majority opinion, which held that the protection of public property justified the debated restriction, was not acceptable. On the contrary, he pointed out that the decree arbitrarily excluded a group of legal subjects from the possibility of renting a flat. This restriction related to a certain group of perpetrators only, who were also motivated by social disadvantage, yet not to other perpetrators committing even more serious crimes against the premises of the local authority. In András Bragyova's opinion, this discrimination could not be reasonably justified. Excluding the violators of law from the possibility of renting a flat was not constitutionally justifiable when these occupiers were only people in real need of a flat.