The Ombudsman for Future Generations welcomes the Constitutional Court’s guidance on state-level nature protection

The Ombudsman for Future Generations deems it a key development in nature protection that the Constitutional Court has comprehensively examined, for the first time ever, the legal requirements of the preservation of biological diversity, in its decision concerning the legal issues related to the privatization of state-owned lands in the Natura 2000 network. Based on the earlier Constitutional Court decisions, the international treaties, as well as the joint professional opinion of the Commissioner for Fundamental Rights and the Ombudsman for Future Generations, by taking the latest findings of natural sciences into account, the Constitutional Court defined the framework of the state’s obligations related to nature protection, thus setting objective requirements for the nature protection activities of the state. 

For the protection of future generations, it is an idea of utmost importance that the obligation of protecting physical, biological and cultural values as defined in the Fundamental Law of Hungary “is a structural principle permeating the overall spirit of the Fundamental Law, which expresses Hungary’s commitment to the preservation of natural resources, so that we can pass them on to the future generations.”   “The will of the legislator who drafted the Constitution can directly be derived from Article P) of the Fundamental Law, i.e. that human life and its natural conditions, in particular arable land and in relation to this, biodiversity, shall be protected and preserved for future generations in such a way that they ensure the conditions of life for the latter, and that they definitely do not deteriorate it as a result of the generally accepted principle of the prohibition of withdrawal.”

The situation is that if the accessibility of biodiversity and that of the services provided by nature decreases, the critical conditions of human life may cease to exist.

Ombudsman for Future Generations Gyula Bándi highly appreciates the ecological analysis included in the decision adopted by the Constitutional Court, which, among others, stresses that the preservation of biodiversity cannot be efficiently implemented in smaller, isolated nature reserves. The fragmentation of habitats poses a serious threat to the preservation and maintenance of biodiversity. Since it is agricultural production that is responsible for two-thirds of the reduction of biodiversity, the special significance of the Natura 2000 areas for nature protection lies in that they create ecological corridors between the natural ecological systems in the midst of agricultural areas.

Ombudsman for Future Generations Gyula Bándi welcomes that the decision also relies on the submission that was prepared by the Office of the Commissioner for Fundamental Rights at the request of the Constitutional Court. Thus, in agreement with the position taken by the Deputy Commissioner, it is stressed in the decision, among others, that in the case of the privatization of Natura 2000 areas, some very important statutory safeguards are missing, and the control of the observance of the existing requirements is not properly ensured either, which in combination result in less efficient protection. All this was deemed by the Constitutional Court to be a violation of the Fundamental Law demonstrated in negligence.

The Ombudsman for Future Generations thinks that his and his predecessors’ position that the legislator has to pay increased attention to the precautionary principle has been confirmed. “It is the state that should certify that, also with regard to scientific uncertainty, the condition of the environment will definitely not deteriorate as a result of an action in question”, i.e. “that all such measures which involve the deterioration of natural conditions or the risk thereof, even if the statutory regulations are unchanged, violate the Fundamental Law of Hungary.”

The Ombudsman also finds it of key importance that “The prohibition of withdrawal as the state’s extra obligation related to environmental regulation shall refer to substantive environmental law and procedural law regulations, as well as the organizational regulation concerning the system of institutions.” As has already been pointed out by the Constitutional Court earlier, in the field of the protection of the environment, “all those tasks which are performed by the state by protecting subjective rights should be done by providing statutory and organizational safeguards in this case.”

The Deputy Commissioner fully agrees with the evaluation provided by the Constitutional Court, according to which the obligation to preserve biodiversity “has become such a constitutional value in the Hungarian law which should also be taken into account by the legislator in the elaboration of the laws that belong to the scope of the individual sectoral policies”, and “these expectations of the level of fundamental principles can only be met by the legislator if they consider the situations in perspective, arching over government tenures when making their decisions.”