a)  Hungary / b)  Constitutional Court / c) / d)  14-11-2012 / e)  38/2012 / f)  On the annulment of certain provisions of the Act on Contraventions criminalising people living at public areas permanently / g)  Magyar Közlöny (Official Gazette), 2012/151 / h) .
Keywords of the systematic thesaurus:
Constitutional Justice - Jurisdiction - Scope of review - Extension.
General Principles - Social State.
General Principles - Rule of law.
General Principles - Clarity and precision of legal provisions.
Keywords of the alphabetical index:
Arbitrariness, prohibition / Criminal law, social / Competence, legislative, limits / Punishment / Homeless, discrimination.
Legislative provisions which rendered permanent living in the public space a regulatory offence, which accorded unduly wide legislative powers to local governments to impose fines or even detention on homeless persons, and to define punishable anti-social behaviour, and which empowered local governments to confiscate the property of homeless people, violate the rights and human dignity of the affected persons, as well as the prohibition of discrimination and the principle of legal certainty.
I. In an earlier Decision (176/2011), the Constitutional Court ruled that making dustbin scavenging a regulatory offense is unconstitutional. In its reasoning the Court established that by making certain acts which are outside the scope of littering regulatory offences, the local government overstepped the scope of its law-making power. Decision 176/2011 underlined the fact that dustbin scavenging is an activity that does not violate the rights of others, nor can it be established that it is dangerous for society. In addition, the decision emphasised that by making dustbin scavenging a regulatory offence, the local government stigmatised homeless and other marginalised people, which was against the prohibition of discrimination. Following this decision, a legislative package was adopted by Parliament which ordered the improper use of the public domain to be punished even by confinement. As a result of these amendments, local governments can list the purpose of the usage of public areas and sanction the improper use of public areas. In addition, the law made it possible to impose a fine (or even confinement) on those living in public places permanently.
The Commissioner of Fundamental Rights requested the Constitutional Court to review whether these legislative amendments were compatible with Articles B.1, I.3, II and XIII of the Fundamental Law of 2012, which guarantee that Hungary is a democratic state governed by the rule of law, set conditions for the limitation of fundamental rights, recognise human dignity as an inviolable human right and guarantee the right to property. The Commissioner contended that these regulations gave room for excessively broad interpretation and authorisation for local government to sanction the improper use of public places and thus it infringed the rights and human dignity of the affected vulnerable group. In addition, the Commissioner argued that such regulations are neither effective nor preventive but only suitable for further discrimination and humiliation of the people affected. The Commissioner argued that living on the streets is the result of a serious situation of social crisis and generally does not depend upon the free choice of the individual.
II. First, the Court annulled Section 186 of the Act II of 2012 on Contraventions and some related provisions. The Court held that the concept of the rule of law applies in the same manner under the Fundamental Law of 2012 (Article B.1) as under the previous Constitution. The Court also took into consideration its own existing case-law, which has consistently reaffirmed certain rules concerning the limitation of fundamental rights.
The Court noted that, although the definition of crimes within the competence of the legislature, and thus the sphere where democratic majority opinion could be realised, in exceptional cases constitutional control can be applicable (Decision 21/1996). According to Decision 30/1992, the legislature may not act arbitrarily when defining the scope of conduct to be punished: "A strict standard is to be applied in assessing the necessity of ordering the punishment of a specific conduct: with the purpose of protecting various life situations as well as moral and legal norms, the tools of criminal law necessarily restricting human rights and liberties may only be used if such use is unavoidable, proportionate and there is no other way to protect the objectives and values of the State, society and the economy that can be traced back to the Constitution". At the same time, the Court explained that it must not give way to arbitrary interpretation of the law by those applying the law. Thus, a sanction must fit within one of the constitutional bases required and also the principle that sanctions must comply with the requirements of legal certainty.
Section 186 of the challenged Act qualified living in public areas as an inappropriate use of public places and declared it an offence. The legislature thereby criminalised living in public areas, namely, homelessness itself. According to the Court, neither the removal of homeless people from public areas nor providing an incentive for such persons to avail themselves of the social care system can be considered as a constitutional reason that could be the basis for the criminalisation of homeless people's living in public areas.
In the Court's view, homelessness is a social problem which the State must handle in the framework of social administration and social care instead of punishment. If the State punishes unavoidable living in a public area, the regulation fails to meet the requirement of the protection of human dignity ensured by Article II of the Fundamental Law. Taking this into consideration, the Court declared that the Act on Contravention already contained several other provisions sanctioning the violation of the rights of others and public peace (e.g. vagrancy, the ban of alcohol consumption, illegal gambling, violation of public morality). Furthermore, the Court held that the contested regulation violated legal certainty, as the insufficiencies and inconsistencies of the regulation resulted in serious problems that could not be resolved by judicial interpretation.
Second, the Court also annulled Sections 51.4 and 143.4.e of Act CLXXXIX of 2011 on Local Governments. The challenged provisions accorded to local governments the power to impose fines by defining contraventions related to antisocial behaviour. The Court held that the Act ensures an excessively wide and discretionary authority for local governments to define the banned acts. As the legal definitions used by the Act are not clear, it does not facilitate proper interpretation.
In addition, the Court considered that, since the legal terms used are not clear, the risk of abuse of local governments' law-making competence might increase given that the fine – based on local governments' regulations – is part of the revenue of local governments. Without any legal guarantees this economic interest might encourage local governments to prescribe prohibitions as widely as possible and impose fines in order to increase their revenue.
Taking this into consideration, the Court held that the concerned provisions are contrary to the Fundamental Law, since they violated the requirements of legal certainty and of the subordination of the public administration to the law.
Third, although the Commissioner did not challenge Act CXL of 2004 on the General Rules of Public Administrative Procedures and Services, the Court extended the review to some of its provisions since they were closely related to the regulations contested in the petition.
The reviewed provisions accorded law-making authorisation to local governments to confiscate the property of homeless people. The right to property is ensured by Article XIII of the Fundamental Law and it may only be restricted in exceptional cases, in such circumstances and manner as stipulated by an Act. Therefore, the Court declared that the confiscation imposed by the local government – in the absence of legal framework regulations – violated legal certainty and the requirements of the limitation of the right to property.
III. Four justices – István Balsai, Egon Dienes-Oehm, Béla Pokol, Mária Szívós – attached dissenting opinions to the decision.