Initiatives of the Commissioner for Fundamental Rights Concerning the Rules of Communal Coexistence

The Commissioner for Fundamental Rights has turned to the Constitutional Court because of the absence of legal guarantees for the so called rules of communal coexistence which would define the frameworks for the local governments' powers to impose fines. Ombudsman Máté Szabó has simultaneously called on the Curia to conduct a legal review of an ordinance issued by the 5^th District's local government on this issue.

Back in November 2012, acting upon the initiative of the Commissioner, the Constitutional Court (CC) annulled a provision of the Local Governments Act empowering local governments to sanction anti-social behaviour. According to the CC's reasoning, the uncurbed empowering of local governments to regulate infringed on the principle of the rule of law. Nevertheless, the authorization to define the rules of community coexistence became effective as of 1 January 2013. In his report in January 2013, the Ombudsman pointed out that this regulation, too, was constitutionally alarming since it contained even fewer framework rules. The Ombudsman's request notwithstanding, the competent ministry has not made the necessary amendments – that is the reason why the Commissioner has requested the Constitutional Court to review the empowering provision.

In his petition the Commissioner, referring to the earlier decision of the Constitutional Court, has pointed out the following: it is not compatible with the requirements of the rule of law that, in the context of establishing the basic rules of communal coexistence and sanctioning their violation, there are no substantive legal guarantees protecting the rights of the violators. According to Ombudsman Máté Szabó, the empowerment provided by the law is extremely broad and unrestricted. Currently, relying on the regulatory powers put at the exclusive discretion of local governments, local authorities may impose fines on people even referring to an alleged hurt of the public interest, thus meddling in the lives of people residing or sojourning under their jurisdiction. It is unclear how to set the rules of communal coexistence, whom they may apply to and whether they should cover only public spaces. In his petition the Commissioner has also touched upon the fact that the power to impose fines, being in their economic interests, might encourage local governments to extend regulating as wide as possible and to impose substantial fines.

In his report in January 2013, the Commissioner for Fundamental Rights requested the Budapest Municipal Government Office to conduct a legal review of some disquieting elements of an ordinance issued by the 5th District's local government. In its response, the Government Office pointed out that it was unable to comply with its obligations of legal control due to the vagueness of legal regulation in this field. Since establishing the unlawfulness of  local government ordinances falls under the jurisdiction of the courts, Máté Szabó has called on the Curia to annul all unlawful elements of the aforementioned ordinance.

In his petition the Commissioner has stressed that defining the dos and don'ts for local communal coexistence in itself cannot be considered disquieting. Any and all communities may define rules that could serve as the basis of peaceful coexistence. However, the district's self-government has introduced some bans based on the extended interpretation of the rules of coexistence, including issues that are sanctioned by the Misdemeanour Act, too. Furthermore, on several occasions, the ordinance calls for accountability for complying with local trade, animal husbandry or other special administrative rules and ignores the guarantees of fair procedure.

The Hungarian text of the petition to the CC may be found at

http://www.ajbh.hu/documents/10180/111959/201305350Ai.pdf

The Hungarian text of the petition to the Curia may be downloaded from

http://www.ajbh.hu/documents/10180/111959/201305350Ki.pdf