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GÁBOR HALMAI
as something the state ‘shall strive’ for, which is a step backward in comparison
with the 1989 Constitution. Social insurance is not a constitutional institution
any more, and the provisions of the Fundamental Law do not guarantee equal
dignity and the former level of property protection. The recent case law of the
Constitutional Court reaffirms the initial concerns: dignity supported social
solidarity got lost in the illiberal backsliding of the past ten years.
One of rules of the new Fundamental Law contradicting the principle of dignity
— and societal solidarity, humanity in wider sense - after the Seventh Amendment
of 2018 is the issue of criminalizing homelessness. Article XXII(3) of the
Fundamental Law reeds as follow: ‘Using a public space as a habitual dwelling shall
be prohibited.’ The amendment overrode a former decision of the Constitutional
Court on the Misdemeanour Act, in which the Court stated that the punishment
of unavoidable living in a public area fails to meet the requirement of the protection
of human dignity. Right after the Seventh Amendment the Misdemeanour Act
was also modified, and introduced the regulatory offence of habitual dwelling
on a public place accompanied with a humiliating procedure: police officers are
empowered to order homeless people into shelters and can arrest them if they
disobey after being ordered three times in a 90-day period. Punishments include
jail, community service and their possessions being destroyed (also pets are
taken away)." Five judges from different courts of first instance challenged this
piece of legislation before the Constitutional Court from October 2018 and in
the subsequent months, stating that the new regulation infringes human dignity,
legal certainty, right to fair trial and personal liberty.
The Constitutional Court has published its shocking decision in early June
2019,”° and declared that the criminalization and imprisonment of homeless
people is in line with the Fundamental Law.”! According to the majority decision:
1° Hungarian Constitutional Court Judgement of 12 November 2012, Decision 38/2012 (XI.
14.) AB. Cf. its press release available at https://hunconcourt.hu/announcement/provisions¬
of-the-act-on-contraventions-criminalizing-people-living-at-public-areas-permanently¬
are-against-fundamental-law/.
1% New Hungary Law Bans “Rough Sleepers”, Rights Groups Complain’, Reuters (15 October
2018), https://www.reuters.com/article/us-hungary-homeless/new-hungary-law-bans¬
rough-sleepers-rights-groups-complain-idUSKCNIMPIEB.
?° Hungarian Constitutional Court Judgement of 6 November 2018, Decision III/1628/2018
AB (not available in English).
2 Streetlawyer Association, The Constitutional Court has Made an Inhumane Decision on
the Confinement of Homeless People, https://utcajogasz.hu/en/resources/misdemeanour¬
cases/the-constitutional-court-has-made-an-inhumane-decision-on-the-confinement-of¬
homeless-people/.
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