The sanctioning of dustbin scavenging is stigmatisation and a disproportionate restriction without any constitutional ground - the Ombudsman's comments on the Constitutional Court's decision On the Methods of Inquiry of the Commissioner for Fundamental Rights

The sanctioning of dustbin scavenging is stigmatisation and a disproportionate restriction without any constitutional ground - the Ombudsman's comments on the Constitutional Court's decision

The Commissioner for Fundamental Rights has received the Constitutional Court's decision, in which it acceded to the motion of Máté Szabó and annulled with immediate effect a local government decree of Kaposvár which made dustbin scavenging a regulatory offence. The Commissioner expressed his hope that other organs affected by similar cases will not await a further negative ruling of the Constitutional Court.

In 2010 the Ombudsman called the attention of the local government of Kaposvár to the fact that by making dustbin scavenging a regulatory offence and sanctioning it as such it had disproportionately restricted, without a real constitutional ground, the rights of defenceless persons. Such and similar local government "measures" and sanctions can not be applied, have no dissuasive force, and are only suitable to further humiliate and drive away defenceless people. The Commissioner requested in vain the revocation of the decree, so he turned to the Constitutional Court for review. The Court agreed with the constitutional and fundamental rights arguments set out in the Ombudsman's motion, and in its decision at the end of December 2011 it ruled that making dustbin scavenging a regulatory offence is unconstitutional, and annulled the relevant provision with immediate effect.

In its reasoning the Constitutional Court established that by making a regulatory offence certain acts which are outside the scope of littering, e.g. dustbin scavenging, the local government overstepped the bounds of its lawmaking competence.  The decision underlines the fact that dustbin scavenging is an activity that does not violate the rights of others, it is not contrary to law and order, nor can it be established that it is dangerous for society. The Constitutional Court's decision also emphasised that by making dustbin scavenging a regulatory offence, the local government stigmatised homeless and other existentially marginalised people, which violates the prohibition of discrimination.

According to the Commissioner for Fundamental Rights, the decision of the Constitutional Court makes it clear that in a democratic State governed by the rule of law no local government decree or any other rule of law may arbitrarily and without a proper reason prohibit any kind of behaviour on public domain. In connection with this case the Commissioner points out that the symbolic message of the ruling, which goes beyond the case at hand, is that scapegoating and criminalisation has to end. Sanctioning aimed at defenceless, homeless people or at people threatened by homelessness, and their stigmatisation is constitutionally inacceptable.  According to the Commissioner for Fundamental Rights, principles such as the requirement of legal certainty, the prohibition of arbitrary lawmaking, proper legal justification for sanctions, and the right to equal dignity are still governing principles for lawmaking and the application of the law following the entry into force of the new Fundamental Law. In the Ombudsman's opinion the scarce resources for resolving the problems of homelessness must primarily be devoted to prevention and assistance, but also to the prosecution of types of conduct dangerous for society.

Decisions of the Constitutional Court are binding on everybody, and any circumvention or overwriting of those contained therein is contrary to the fundamental norms of the rule of law and hence inacceptable, warned Máté Szabó. Following this ruling of the Constitutional Court, which gives the necessary guidance on the matter, the Commissioner expects that local governments that apply similar regulations or legal solutions will revise their position as soon as possible. At the same time the Ombudsman notes that at the end of 2011 he has already initiated proceedings with the Constitutional Court in connection with the decree of Józsefváros (Budapest) sanctioning dustbin scavenging and the legislative package ordering the improper use of public domain to be punished even by confinement, and that he still upholds these motions.