Safeguards against arbitrary practice of local governments - the Ombudsman on the redrafting of regulations on sanctioning anti-social behavior

Safeguards against arbitrary practice of local governments - the Ombudsman on the redrafting of regulations on sanctioning anti-social behavior

The commissioner for fundamental rights says that the new legislation regulations empowering local governments to adopt new regulations, effective from 1 January 2013 and replacing previous provisions annulled by the Constitutional Court raise serious concerns about legal certainty. Máté Szabó urged to the establishment of a clear legislative framework and the immediate revision of local government regulations acting beyond their authorization in order to reduce their "eagerness" for fining.

At the end of 2011, the ombudsman requested the Constitutional Court to examine the legal regulations authorizing local governments to adopt local regulations. Furthermore, during the fall of 2012 Máté Szabó reviewed local regulations already adopted concerning anti-social behavior. According to the commissioner, local communities may adopt, besides general provisions imposing criminal prohibitions or penalizing minor offences, special norms as well, however these norms should be predictable, and should not constitute an infringement on any fundamental right: they can impose restrictions on housing exclusively to a reasonable extent.

The comprehensive review of regulatory sanctions adopted in 2012 by local governments and their practices confirmed the constitutional concerns indicated in the petition submitted to the Constitutional Court. The ombudsman has detected several content and formal-type mistakes in the wording of the regulations: several settlements were sanctioning behaviors without any constitutional reason or which had been already sanctioned under higher-level legislation regulations. In spite of the relevant decisions of the Constitutional Court, several local governments criminalized homelessness, life sustaining activities in public spaces, scavenging or silent begging. 

The ombudsman's investigation was still running when, in November 2012 the Constitutional Court annulled the contested authorizing provisions of the act on local governments which empowered local governments to determine, in an extremely wide scope and arbitrarily those behaviors that were considered as anti-social. Following the decision of the Constitutional Court, the ombudsman reviewed the legal fate of the relevant local regulations and any attempt to re-regulation. The report states that although government agencies did not receive any guidance from the competent ministry, they intended to promote the fulfillment of the requirement of the rule of law, initiated the repeal of contested local government regulations, which in part was fulfilled.

The commissioner for fundamental rights, however, underlined that the new provisions of the act on local governments have provided even broader powers to adopt local regulations. The relevant local regulations referring to the provisions effective from 1 January 2013 give a very broad interpretation of community rules when determining sanctions, going even beyond this new authorization. For this reason ombudsman Máté Szabó requested the government agency to review the said regulations.

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