On its Plenary Session of 12 November the Constitutional Court – on the petition of the Commissioner for Fundamental Rights – held unconstitutional certain provisions of the Act on Contraventions criminalizing people living at public areas permanently.

I. The Constitutional Court has deemed contrary to the Fundamental Law and has annulled Section 186 of Act II of 2012 on Contraventions and some related provisions.

According to the reasoning of the decision the Fundamental Law of Hungary has the same regulation on the concept of the rule of law (Article B para. (1) of the Fundamental Law) as the constitution had before. The Constitutional Court’s precedents have consistently reaffirmed the rules of the limitation of Fundamental rights, the Court took these rules into consideration when judging over the criminalization of certain behaviours.

Although the definition of crimes is in the competency of legislation and thus the sphere where democratic majority opinion is realized, in exceptional cases constitutional control can be applicable (Decision 21 of 1996).

The Constitutional Court has appointed the aspect of the control in Decision 30 of 1992. „It is a requirement of content following from constitutional criminal law that the legislature may not act arbitrarily when defining the scope of conducts 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 Constitutional Court has explained, it must not give way to arbitrary interpretation of the law by those applying the law, thus constitutional reason is needed and also the norm that declares sanction must comply with the requirements of the clarity of legal norms.

The Section 186 of Act on Contraventions has qualified the living at public areas as inappropriate use of public places and has declared it as contravention.  Hereby, the legislative body has declared the criminalization of the living at public areas namely the homelessness itself. According to the reasoning, the Constitutional Court has declared that neither the removal of homeless people from public areas nor the incentive to avail themselves of the social care system shall not be considered as a constitutional reason that could be the base of the criminalization of the homeless people’s living in public areas.

Homelessness is a social problem which the State must handle in the framework of the social administration and social care instead of punishment. If the State punishes the necessity living at public area, the regulation fails meet the requirement of protection of the human dignity declared in the Fundamental Law (Art. II). Taking this into consideration the Constitutional Court has declared that the Act on Contravention already contained several independent cases sanctioning the violation of the rights of others and the public policy (e.g. vagrancy, the ban of alcohol consumption, illegal gambling, violation of public morality). Furthermore, the Constitutional Court has declared also that the examined regulation violated the legal certainty, as the insufficiencies and inconsistencies of the regulation result in such serious problems that cannot be resolved by the judicial interpretation.

II. The Constitutional Court has deemed contrary to the Fundamental Law and has annulled Section 51 para. (4) and Section 143 para. (4) e) of Act CLXXXIX of 2011 on Local governments of Hungary.

The concerned provisions gave right to local governments to impose fine by defining contraventions for antisocial behaviours. The Constitutional Court has declared that the Act ensures an excessively wide and discretionary authority for local governments to define the banned behaviours.

According to the previous decisions of the Constitutional Court, the legal certainty is an indispensable component of the rule of law. “Legal certainty compels the State – and primarily the legislature – to ensure that the law on the whole, in its individual parts and in its specific legal rules, are clear and unambiguous and that their addressees find their operation ascertainable and predictable” (Decision 9 of 1992). As the determinations of the terms are not clear, it does not facilitate the interpretation of the contents of the authorisation.

Because of the indecisiveness of the legal frameworks, the risk of the abuse with the legislative competence might increase as the fine – based on the local governments’ regulation – is the part of the revenue of the local governments. Without any legal guarantees this economic interest might stimulate the local governments to prescribe prohibitions as widely as it is possible and impose fine in order to increase their revenue.

Taking this into consideration the Constitutional Court has declared that the concerned provisions are contrary to the Fundamental Law and they violated the requirements of legal certainty and the requirements of the subordination of the public administration to the law.

III. Although the petition of the Commissioner for Fundamental Rights did not concern the Act CXL of 2004 on the General Rules of Public Administrative Procedures and Services, the Constitutional Court has extended its examination of this Act because the contents of the provisions are closely related to the legal regulation specified in the petition.

The examined regulations gave legislature authorisation for the local governments to impose confiscation against homeless people. The right to property is a fundamental law, it is ensured in the Fundamental Law of Hungary (Article XIII) and it may only be restricted in exceptional cases in such circumstances and manner as stipulated by an Act. Therefore the Constitutional Court has declared that the confiscation imposed by the local government – in absence of legal framework regulations – violates legal certainty and the requirements of the limitation of the right to property.

Four judges – Dr. István Balsai, Dr. Egon Dienes-Oehm, Dr. Béla Pokol, Dr. Mária Szívós judges – attached dissenting opinion to the decision.