Right to environment in Hungary

Gyula Bándi

The right to environment as a possible human right have first been adopted in 1976 by the first environmental act - Act II. of 1976. 2. §. par. 2. This has never been implemented or even explained.

The amended Constitution - amended in 1989 - mentions the right to environment in two articles:

If we examine first of all Art. 18, than the following conclusions may be drawn:
  1. the article underlines the importance of state activity.
  2. this right is not limited to Hungarian citizens - 'everybody'
  3. the wording is general, as healthy environment may be understood in different ways - covering mental health and physical health at the same time.
Due to the general wording, this article had to be interpreted. The exclusive authority for interpretation is the Hungarian Constitutional Court. The first of such cases have been the No. 28/1994.(V.20.) decision of the Hungarian Constitutional Court. In this decision the Court interpreted the constitutional right to environment, which appears in two articles of the Constitution.

The case in question was an appeal against the constitutionality of the provision of an act that might lead to the curtailment of nature conservation areas and to the degradation of natural values, through opening up the chance for privatisation of nature protection areas. The court stated that though the private property of nature conservation areas in itself was legal, a set of obligations and limitations on the use of this property was missing.

The major argument came from the environmental rights. According to the court the level of protection in the field of environment and nature conservation should not be questioned, only in such cases where the implementation of other constitutional values or basic rights is the issue. This meant a balance of the same level of interests. The whole case took the constitutional rights to the environment as the basis of decision making. In order to do so the court had to give an interpretation of these rights which was the real value of the case. It will certainly have a lasting significance on legislation.

First of all the decision referred to a former decision of the Constitutional Court, decision No. 996/G/1990. This was the first result in connection with the right to environment. The decision states that the right to a healthy environment constitutes an obligation for the state to establish and maintain the specific system of institutions to protect this right. These legal and organisational institutions are necessary for the implementation of this right as the mere statement is far from being enough. The decision also emphasises that the specificity of the right to environment is based on the fact that the real subject of the right should be humanity and even nature.

This first judgement also stresses that the level of protection is not at the discretion of the state as this protection constitutes the foundations of human life and the harm to the environment is usually irreparable. The need for a certain level of protection leads to a strict regime of security. Thus the state is free to choose from the means and methods of protection, but has no freedom in allowing any form or even the risk of degradation.

One paragraph of the 1994 decision explains that prevention has priority over sanctions in the field of environmental protection. Prevention as a requirement can only be effective if the legal framework for effective protection is made. The lack of preventive measures was one reason for the decision. As was already mentioned, the private ownership of nature conservation areas is not unconstitutional in itself, but together with a lack of necessary legal institutions may lead to a threat on nature conservation interests. Sanctions and mere prohibitions in this situation are not enough, though, as those guarantees are missing that help in avoiding the damages. It is not allowed to limit or risk the given level of protection with unclear privatisation rules and property relations and without a system of preventive measures.

It is worth mentioning that in the Constitutional Court two judges out of nine backed the following statement: the state should not be limited in choosing the necessary measures for the implementation of the right to a healthy environment by some ideals in the level of protection.

From among the other decisions one should also be mentioned. It is the judgement 48/1997. (X. 6.) AB. The case was also connected with nature conservation. The Court stated among others the followings:

"The necessity of protecting natural values lies in objective conditions. Damages to nature may destroy finite values, which are in many times unrestorable, and the lack of protection may initiate non reversible processes. Due to this character it is not admissible to allow qualitative or quantitative movements on the basis of actual economic and social conditions, which may otherwise be possible in case of social and cultural rights, where the restrictions may later be remedied. � The implementation of the right to environment requires not only keeping the present level of protection, but also that the state should not step backward towards liability based protection from the preventive measures.

Finally I have to take one element of the judgement 48/1998. (XI. 23.) AB, which deals with the protection of embryo life. The judgement refers to the right to environment as a parallel issue, where the roots may be found in the right to life. According to the Court the right to health or right to a healthy environment both serve the health of future generations. The right to a healthy environment defines the duty of the state as a constitutional right.

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