Housing over handcuffs: the criminalization of homelessness in Hungary.

• Author: Zakim, Deena A.

1. INTRODUCTION

   If you sleep on the street in Hungary, you become a criminal. (1) The Hungarian government has criminalized the actions of its homeless population in an attempt to clear them from its streets. (2) In 2010, Hungary enacted legislation that authorizes local governments to criminalize homelessness and, in doing so, has violated its commitment to human rights. (3) When the Constitutional Court of Hungary rightfully overturned the legislation, the government refused to revoke it, amended the Constitution to permit promulgation of such laws, and most recently, under its newly established authority, the Parliament passed an amended version of the original law (2013 Anti-homelessness Law) to permit fining and imprisoning of the homeless. (4) There are different perspectives regarding the causes of homelessness and these perspectives have policy implications: the perspective that homelessness is a choice leads to harsher and less sympathetic policies against homelessness, including criminalization. (5) The perspective that homelessness is not a choice, but rather a crisis cause by factors often outside of one's control, leads to more positive approaches to homelessness, such as affordable housing programs. (6) These approaches to homelessness make up a spectrum ranging from criminalization by legislation to national strategies to end homelessness by positive methods. (7) The Hungarian government has chosen criminalization, causing further exclusion and harm to an already vulnerable population. (8) Housing has been identified as a human right; therefore, Hungary's policies have implications on international human rights. (9) The United Nations has reacted to this legislation by calling on Hungary to revoke it and instead create affordable housing programs. (10) Although Hungary's Constitutional Court has ruled against the law, the government resisted its revocation and was organizing to keep it in place. (11) The government managed to amend the Hungarian Constitution to permit legislation that criminalizes homelessness and subsequently passed a law enacting such legislation. (12)

   This Note addresses Hungary's recent anti-homelessness legislation and discusses the need for its revocation. (13) Part II of this Note will provide information on the homeless population in Hungary, the development of the legislation, the Constitutional Court decision that overturned it, and the Hungarian government's passage of constitutional amendments to allow it. (14) This part will also examine the opposition against the legislation, by international, regional, and local communities, and the effect, both legal and social, it has in Hungary. (15) Part III of this Note will explain the historical context in which this legislation has arisen, tracing back to the treaties and resolutions meant to govern Hungary's approaches to homelessness as well as the recognition of housing as a human right. (16) Part IV will analyze how Hungary's insistence on enabling the legislation--by amending the constitution and passing the 2013 Anti-homelessness Law--diverges from international human rights law, regional agreements, resolutions, and EU values and must be corrected. (17) This part will also analyze the Constitutional Court proceedings related to the anti-homeless legislation in Hungary and how its reasoning aligns with Hungary's human rights obligations. (18) Additionally, it will recommend that Hungary revoke its legislation criminalizing homelessness to follow the ruling of the Hungarian Constitutional Court and fulfill both the international human rights and regional obligations Hungary has made through treaties and resolutions. (19) This part will further recommend that Hungary also repeal the constitutional amendment permitting the Anti-homelessness Law and address the issue of homelessness in a more humane way by honoring the right to housing and its commitment to end homelessness. (20) Finally, Part V will summarize the development and status of the anti-homelessness legislation in Hungary and recommend that Hungary change it. (21)

2. FACTS

   1. The Homelessness Problem

      Homelessness has become a pervasive problem in Hungary's capital city, Budapest, as well as across the rest of the country. (22) The country does not have adequate services to accommodate the growing homeless population or an effective strategy to address it. (23) The homeless shelters are often dangerous and, despite having no other place to go, many people try to avoid these shelters. (24) This contributes to the growing number of homeless people living on the streets, increasing the visibility of the issue. (25) Hungary's public shelters do not have enough beds even for those homeless individuals who try to utilize them. (26) Homelessness has been a growing concern across Europe generally. (27) The European Commission has deemed the problem serious enough to motivate Europe 2020. (28) Europe 2020 is the first strategy Europe has developed to attempt to reduce poverty on a large scale. (29)

   2. Development Of Hungary's Anti-homelessness Legislation

      Hungary's anti-homelessness legislation evolved over the course of several years, becoming more detailed and involving more significant punishments. (30) In November 2010, the Hungarian Parliament amended the construction law, the Law for the Built Environment and Protection. (31) The law defined functions of public spaces and authorized the government to classify the purpose of public spaces and punish improper use of such spaces. (32) This authorization became the basis for government regulation of use of public space. (33) The government intended to punish those who use public space for habitual housing, classifying it as improper use. (34) The following November, the Parliament amended the law again, allowing the imprisonment of repeat offenders of improper use for as long as sixty-five days and seeking fines as high as HUF50,000, approximately USD220. (35) On April 15, 2012, the Hungarian Parliament, utilizing its authorization to regulate use of public space, enacted the Act on Petty Offenses. (36) This legislation makes habitually residing in public spaces, or storing one's belongings in such spaces, a crime punishable by imprisonment and/or fine. (37)

      The Law statutorily defines proper use of public space, permitting the typical activities of the general public. (38) The law states that anyone can use the public land for its intended purpose. (39) The statute grants local governments the power to promulgate regulations allowing them to imprison and/or fine individuals engaged in habitual public housing and storing belongings on public property. (40)

      Since taking power in 2010, Fidesz, the political party behind the legislation, has caused significant controversy beyond the criminalization of homelessness. (41) This anti-homelessness legislation is consistent with with other changes the government has made that infringe on the constitutional rights of its citizens and violate its international obligations. (42) The controversial changes that the Hungarian government made have been the focus of discussion among different EU institutions. (43) The EU Commission has contemplated sanctioning Hungary for its conduct. (44) Hungary's government responded to criticism with mixed messages, suggesting that it was open to hearing conflicting opinions, but not open to altering anything in a way that conflicts with its new constitution. (45) The Budapest local government also issued decrees enacting local mandates on the proper use of public spaces. (46) Similar to these restrictions on use of public space, the Budapest local government previously issued a decree against scavenging in the garbage. (47)

   3. Opposition Against Anti-Homelessness Legislation is Widespread

      Anti-homelessness legislation has engendered controversy among the local advocacy community, the Hungarian Constitutional Court, and international bodies. (48) Representatives in Hungary, such as the Hungarian Ombudsman, Mate Szabo, are rising in opposition against the new laws and the impact that they have on the homeless and those living in severe poverty. (49)

      1 Legal Proceedings in Hungary Against Such Laws

      The authorization for governments to impose public space regulations was not the first anti-homelessness legislation propagated in Hungary. (50) The Hungarian Constitutional Court is the proper forum to challenge these cases. (51) The Constitutional Court is an independent court in Hungary. (52) The jurisdiction of the court is broad, including preliminary norm control of enacted, but not yet promulgated statutes, abstract posterior control of legislative acts and sub-legislative acts, and constitutional complaints. (53) The decisions of the Constitutional Court are binding on all other courts in Hungary. (54) In December 2011, The Constitutional Court ruled that the decree against dustbin scavenging was unconstitutional and annulled the provision effective immediately. (55)

      The Hungarian Ombudsman brought the anti-homelessness legislation before the court and contested the amendments to the construction law regarding the proper use of public space. (56) On November 12, 2012, the Hungarian Constitutional Court determined these amendments were unconstitutional. (57) It ruled that the specific legislation that criminalized homelessness was contradictory to the Constitution's requirements for legal certainty. (58) The Court also found the legislation to be contradictory to the right to human dignity and property. (59) This ruling immediately voided the provisions of the law regarding punishment for habitual public housing and storing belongings in public. (60) It also repealed the government's broad authorization to regulate the use of public space. (61)

      The Court took the perspective that homelessness is not a choice. (62) It characterized homelessness as a condition that people suffer through, rather than an intentional situation that one can...