Although according to the opinion of five constitutional judges, the regulation is unconstitutional, according to the Constitutional Court, the criminalization and imprisonment of homeless people does not conflict with the Fundamental Law of Hungary. In the opinion of the Misdemeanor Working Group consisting of civil rights advocates, the majority decision is unacceptable. In fact, the law is inapplicable in practice – the shelter system is not able to accommodate the homeless masses living in public space at the current capacity.
As a result of the seventh amendment of the Fundamental Law of Hungary in 2018, the general prohibition on residing on public premises for habitation was placed on the constitutional level. The Parliament amended the Act on Misdemeanors with effect from October 15, 2018. Last fall homeless people disappeared from the underpasses and their neighborhoods in the capital, and a small number of misdemeanor proceedings, starting with demonstrative police confinements were launched countrywide. A judge in Kaposvár, another in Székesfehérvár and three judges in Budapest appealed to the Constitutional Court, because according to their view, the relevant rules of the Act on Misdemeanors were unconstitutional.
The Misdemeanor Working Group agreed with the petitioners and also turned to the Constitutional Court with its own detailed submission (so-called amicus curiae).
According to the members of the working group, homelessness is a serious crisis situation that needs to be addressed, but not by criminal law, but by social measures. Criminal sanctions do not solve the problem, people living in public areas are pushed out of the city and out of sight of the social care system. With this, their social exclusion and vulnerability increases. Homelessness is not a crime, it is a condition, and the intention to commit the crime is un. Homeless people cannot be forced into institutions that are often inadequate and lacking capacity in the social care system. The new rules of the Act on Misdemeanors are fundamentally infringing basic human rights.
In addition to the working group, the judges’ petitions were supported by a separate petition in front of the Constitutional Court, Leilani Farha, the Special Rapporteur on Housing Rights, László Kiss, László Lévay, former Constitutional Court judges and the Animal Rescue Service Foundation.
In its current decision the Constitutional Court stated that the offense of residing on public premises for habitation is constitutional. “According to the values of the Fundamental Law, nobody has the right to poverty and homelessness, this condition is not part of the right to human dignity,” says the majority decision of the Constitutional Court. Thus, according to the constitutional judges, poverty is the chosen way of life and not the state of total social exclusion. In addition, the Constitutional Court argues that “causing the harm would be if the state would leave the individual without taking care of them, because the right to human dignity is severely violated by the exclusion of man from human society”. This reasoning is false because the body is also aware of the serious shortcomings of the care system, of which the Shelter Foundation, which has many decades of experience, has been giving details to Court. The number of places occupied at night shelters available for homeless people living in public areas is 97% on average in winter, and many night shelters are over 100% occupied on cold days – i.e. there is no free capacity in the care system for homeless people that are sanctioned for residing on public premises for habitation. Homeless people are being pushed out of society because the State fails to act properly.
Balázs Schanda constitutional judge, in a separate opinion, stated that “a punishable offense is an infringement of the Fundamental Law if its purpose is not to care and supply for ones in need. […] The social challenge of housing poverty cannot be remedied by the Constitutional Court, but it cannot forget the social reality in its role to protect constitutionality.”
“It is clear from the text of the decision that the Court does not consider homelessness to be a serious crisis situation but considers it a breach of the cooperation obligation with the law enforcement. It does not consider the confinement a disproportionate sanction, in fact, it argues that it would only be a final option, although it could happen after three warnings – all three issued in within as little as 10 minutes according to the legal definition” – evaluated the Court decision Ágnes Kalota streetlawyer, representing the Misdemeanor Working Group.