The general prohibition of residing on public premises for habitation was placed on constitutional level after the amendment of the Fundamental Law in 2018. The Act on Misdemeanors was also amended in October 2018. After the new law came into effect, homeless people disappeared from Budapest underpasses, and a few misdemeanor proceedings, starting with demonstrative police confinements were launched countrywide.
Judges from different cities appealed to the Constitutional Court, because according to their view, the relevant rules were unconstitutional. The Misdemeanor Working Group also submitted a detailed opinion to the Constitutional Court.
The Constitutional Court claimed in its decision that the criminalization and imprisonment of homeless people does not conflict with the Fundamental Law of Hungary, as homelessness “is not part of the right to human dignity.” Thus, according to the constitutional judges, poverty is a chosen way of life and not a state of total social exclusion.
The decision was not unanimous, five judges expressed a dissenting opinion. Balázs Schanda was one of them, who in a separate opinion, stated that “a punishable offense is an infringement of the Fundamental Law if its purpose is not to care and supply for ones in need. […] The social challenge of housing poverty cannot be remedied by the Constitutional Court, but it cannot forget the social reality in its role to protect constitutionality.”
The Constitutional Court is aware of the serious shortcomings of the care system. The Shelter Foundation with several decades of experience in homeless care, has provided the Court with details on the occupancy rate of night shelters. The average occupancy of night shelters in the winter is 97%, and many night shelters are over 100% overcrowded on cold days, which means that there is no free capacity in the care system for homeless people who are sanctioned for residing in the streets.
In the opinion of the Misdemeanor Working Group consisting of civil rights advocates, the majority decision is unacceptable. Homeless people are being pushed out of society because the State fails to act.
“It is clear that the Court does not consider homelessness a serious crisis situation but rather as a behaviour to be criminalized. It argues that confinement as a sanction would be only used as a last resort, whereas homeless people can end up in detention after three warnings, which could be issued in a matter of 10 minutes.” – evaluated the Court decision Ágnes Kalota lawyer, on behalf of the Misdemeanor Working Group.
The Hungarian Helsinki Committee, the Hungarian Civil Liberties Union and the Street Lawyer Association are working together for a more fair misdemeanor system in the Misdemeanor Working Group.