THE PROHIBITION OF STAYING HABITUALLY ON PUBLIC GROUND IS NOT AGAINST THE FUNDAMENTAL LAW, HOWEVER, THE STATE SHOULD APPLY THE SANCTION WITH ENCANCED CIRCUMSPECTION

14 June 2019

The petitioning judges held the challenged provisions to be contrary to the principle of the rule of law as well as the right to human dignity. They referred to a decision of the Constitutional Court adopted in 2012 – annulling a statutory definition of a minor offence of essentially similar content – as well as to the text of the Fundamental Law amended meanwhile, which does not justify the criminalisation of staying habitually on public ground.

In the decision published today by the Constitutional Court, with due account to the amended regulation of the Fundamental Law – prohibiting for everyone in general staying habitually on public ground – it took a stand on the inapplicability of the 2012 decision of the Constitutional Court. The Constitutional Court shall follow the text in force of the Fundamental Law and it is not empowered to review the content of the Fundamental Law or the amendments of the Fundamental Law. In the course of exercising his or her constitutional rights, the individual is responsible not only for himself or herself, but also for the other members of the community; the exercising of rights should be in balance with his or her responsibility for the community.

Violating a prohibition laid down in the Fundamental Law, i.e. an unlawful conduct shall not be protected by the Fundamental Law. According to the decision, the challenged regulation complies with the constitutional requirement applicable to the law on minor offences, and also enforces its guarantees. The regulation shall impose a sanction against anyone who resists to dispense with staying habitually on public ground despite of the relevant prohibition laid down in the Fundamental Law and despite of receiving multiple explicit warnings. Therefore, the relevant statutory definition of the offence does not sanction a state (being homeless), but it shall impose a legal consequence on violating the obligation of cooperation.

The petitioners claimed that the challenged regulations violated the right to human dignity of homeless people since the law-maker basically introduced a sanction against them. However, the Constitutional Court examined homelessness from a different point of view, as a sociological phenomenon. Such a grievous, marginalized state violated the right of human dignity of the persons concerned and that was the reason why the Constitutional Court did not study the violation alleged by the petitioners. Homelessness would not only justify but, taking into consideration the provisions of the Fundamental Law, constitutionally oblige the State to take tangible measures in order to help out the persons concerned. Therefore, the Constitutional Court had to examine whether it was contrary to the Fundamental Law if the law-maker imposed an obligation on the poorest in order to help them to fulfill their obligation of co-operation with the state authorities. Contrary to the claims of the petitioners, the challenged regulations were about to help the people concerned to resort of the services of the social care system in order to regain their human dignity.

In the light of these stances, the Constitutional Court pointed out that the right of self-determination and the autonomy of action, is the restrictable part of the former, rather than the untouchable “core dignity” of human dignity. This, however, may not result in the violation of a certain prohibition under the Fundamental Law, or the committing of a minor offence. In line with the values of the Fundamental Law, no one shall have the right to be destitute or homeless; this state is not part of the right to human dignity.

As it was emphasized, if the State left the individual alone without caring for him or her, it would cause an injury, since the right to human dignity is seriously violated by the marginalisation of the individual from the human society. The Constitutional Court underlined that the petitioning judges failed to verify that those who use the services of the welfare system are treated as objects and that they are dehumanized. Neither is it verified that in case of using the services of the welfare system, the affected persons are placed among circumstances without human dignity. If indeed such a situation would still occur, the protection of fundamental rights shall be granted for the party whose right has been violated.

Furthermore, the State’s obligation of protecting institutions shall result from the Fundamental Law. The State can fulfil this obligation by providing for introducing the affected persons into the welfare system. In the absence of cooperation by the individual, the sanction under the law applicable for minor offences shall be the ultimate tool available for the State. The Constitutional Court highlighted that the condition of homelessness could be altered and the State bore the obligation, stemming from the Fundamental Law, to help the people concerned to do so. In this regard, the State itself would violate their right to human dignity if it did not provide sufficient measures for homeless persons in order to help them to improve their situation. Having said that, the Constitutional Court stated as a constitutional requirement that the challenged sanction under the law applicable to minor offences shall only be applicable, if the placement of the homeless person was verifiably granted at the time of committing the conduct. In addition, the authorities applying the law should take into account the constitutional obligation aimed at protecting the vulnerable, as well as the fact that the protection of the rights of the affected persons can only be granted by way of introducing them into the welfare system.

Justice Béla Pokol attached a concurring reasoning and Justices Ágnes Czine, Imre Juhász, Ildikó Hörcherné Marosi, Balázs Schanda, István Stumpf and Péter Szalay attached dissenting opinions to the decision.