Constitutional Framework For The Protection Of Future Generations And The Environment In Hungary

Constitutional Framework For The Protection Of Future Generations And The Environment In Hungary Presented by: Dr. Krajnyák Date: 30 August 2024 Introduction - The Hungarian Fundamental Law was adopted in 2011 and is in force since 1st January 2012 - From an environmental aspect, the former Constitution (Act XX of 1949, modified by Act XXXI of 1989) could be regarded as an antecedent: • Recognition and endorsement of the right to a healthy environment • The protection of the environment as a tool of the realization of the right to health Actors In The Formation Of Constitutional Law And Jurisdiction Related To The Environment The Constitutional Court - The Constitutional Court has a key role in the interpretation of constitutional provisions concerning the environment: • 28/1994 (V.20.) the nature of the right to a healthy environment in the light of the former Constitution, the principle of non-derogation:  'the state does not enjoy freedom to allow the deterioration of the environment or the risk of deterioration' • 16/2015 (VI.5.) reaffirmation of the findings of 28/1994 AND the interpretation of the environmental provisions of the new Fundamental Law (the extension of the scope of obligations regarding the protection of the environment, the interests of future generations, the scope of the non-derogation principle) • 13/2018 (ΙΧ.4) - the complex interpretation of the precautionary principle as a constitutional principle  'the legislator should verify that the regulation is not a step- back and this way it does not cause any irreversible damage as the case may be, and it does not even provide any ground in the principle for causing such damage' Deputy Commissioner for Fundamental Rights Ombudsman for Future Generations - The Fundamental Rights Ombudsman has two Deputy Commissioners - Deputy Commissioner for Future Generations; - Deputy Commissioner for the Rights of National Minorities - International activity • Professional materials for the UN Special Rapporteur for HR and the environment • The Global Alliance of National Human Rights Institutions considered the activity of the Hungarian DC practice as a good example in several contexts • The Recommendation of 2017 of the DC on SDGs was published as an annex to the document issued at the High-level Political Forum on Sustainable Development 2018 in New York - Domestic activity • Opinions, Recommendations, and interpretation of the law • Amicus curiae to numerous key CC cases. including 28/2017, 13/2018 • The Fundamental Rights Ombudsman as the petitioner at the CC 14/2020 Basis of Fundamental Rights Right to a healthy environment - Article XXI (1): 'Hungary shall recognize and endorse the right of everyone to a healthy environment.' - Third-generation fundamental right not a subjective fundamental right but more than a state task from the right to life originates - The objective side ('institutional protection') is predominant: the guarantees of environmental protection shall be defined by the State active behavior - The degree of the institutional protection is not arbitrary principle of non-derogation • The scope of the principle was broadened by the organizational aspect (16/2015) Other relevant fundamental rights ensuring the protection of the environment - Article XX • 1) Everyone shall have the right to physical and mental health. • 2) Hungary shall promote the effective application of the right referred to in paragraph (1) through agriculture free of genetically modified organisms, by ensuring access to healthy food and drinking water, by organizing safety at work and healthcare provision and by supporting sports and regular physical exercise as well as by ensuring the protection of the environment. Liability For Environmental Damage - Article XXI (2): 'Anyone who causes damage to the environment shall be obliged to restore it or to bear the costs of restoration, as provided for by an Act.' • Polluter pays principle? 16/2015 (Dissenting Opinion) + discussion in the scientific literature - Article XXI (3): 'The transport of pollutant waste into the territory of Hungary for the purpose of disposal shall be prohibited.' - Article P (1) 'It shall be the obligation of the State and everyone to protect and maintain (natural resources, biodiversity and cultural artefacts], and to preserve them for future generations' • The subject scope of the obligation to protect, maintain and preserve was broadened cf. 28/1994 to 16/2015 Protection Of Natural Resources - National Avowal (Preamble): • 'We bear responsibility for our descendants and therefore we shall protect the living conditions of generations by making prudent use of our intellectual and natural resources.' - Article P (1): • Natural resources, in particular arable land, forests and the reserves of water; biodiversity, in particular native plant and animal species; and cultural artefacts, shall form the common heritage of the nation, it shall be the obligation of the State and everyone to protect and maintain them, and to preserve them for future generations.' Future Generations And Sustainable Development - National Avowal (Preamble): • 'The Fundamental Law [...] shall be an alliance among Hungarians of the past, present and future' - Article P (1) - natural resources • Protection, maintenance and preservation of the common heritage of the nation to future generations - Article 38 (1) - public funds • 'The management and protection of national assets shall aim at serving the public interest, meeting common needs and preserving natural resources, as well as at taking into account the needs of future generations' - Article Q (1) • 'In order to create and maintain peace and security, and to achieve the sustainable development of humanity, Hungary shall strive for cooperation with all the peoples and countries of the world.' Other Relevant Constitutional Values - Christianity (National Avowal, Article R (4) • Encyclical Letter Sollicitudo rei Socialism by Pope John Paul II • Encyclical Letter Caritas in Veritate by Pope Benedict XVI • Encyclical Letter Laudato Si' by Pope Francis • On Earth as in Heaven by Patriarch Bartolomew  The latter two were mentioned in the Constitutional Court Decision no. 28/2017 - Encouragement to have children (Article L (2) • Definition of future generations? Financial Sustainability - National Avowal (Preamble): 'We bear responsibility for our descendants and therefore we shall protect the living conditions of future generations by making prudent use of our material, intellectual and natural resources.' - Article N (1): 'Hungary shall observe the principle of balanced, transparent and sustainable budget management.' - Article 36 (4): 'The National Assembly may not adopt an Act on the central budget as a result of which government debt would exceed half of the total gross domestic product.' • According to the Explanatory Memorandum, this rule reflects the responsibility for the situation of future generations, • in order to avoid indebtedness, i.e. an intolerable burden on future generations by giving excessive priority to current needs of interest. The Protection Of National Assets - Article 38 (1): 'The property of the State and of local governments shall be national assets. The management and protection of national assets shall aim at serving the public interest, meeting common needs and preserving natural resources, as well as at taking into account the needs of future generations.' • National assets & common heritage of the nation • 'The needs of future generations' Conclusion Environmental protection in Hungary - Right to a healthy environment (expresses verbs) - The prominent role of the Constitutional Court in its interpretation - Deputy Commissioner for Fundamental Rights Ombudsman for Future Generations - The needs of future generations appear in relation with the protection of natural resources and public finances Problematic issues - Liability for environmental damage the polluter pays principle? - Liability of non-state actors, i.e. multinational companies? - Procedural rights participation in the decision-making process