The Role and Activity of the Deputy Commissioner for Fundamental Rights Ombudsman

The Role and Activity of the Deputy Commissioner for Fundamental Rights Ombudsman for Future Generations in Shaping Environmental Protection in Hungary Presented by: Dr. Krajnyák Date: 24 November 2022 The Protection of Future Generations in the International Context - The concept of future generations in international law • The theory of intergenerational equity (Edith Brown Weiss) • Difficulties with the implementation of declarative provisions on the interests of future generations: non-existence, rights←→ duties, standing before courts - The institutional representation of future generations • 2013 report of the UN Secretary-General: High Commissioner for FGs, Special Envoy for FGs, national institutions? • FGs institutions: New Zealand, Finland, Canada, Israel (X), Hungary, Wales, Norway, Germany Institutional protection of FGs in Hungary The Green Ombudsman - 2007: the establishment of the position of the Parliamentary Commissioner for Future Generations (the ombudsman) - Act CXLV of 2007 green - Strong competencies:  General powers of an ombudsman  Special powers: o To call upon a person or organization illegally endangering, polluting, or damaging the environment to cease such activities o To call the competent authority to take measures for the protection of the environment o Ask the court to prohibit the person or organization from damaging the environment, to take the necessary measures to prevent damage, and to restore the environmental condition prior to the environmentally harmful behavior The Deputy Commissioner for FGs (Ombudsman for FGs) - 2011: the adoption of the Fundamental Law • 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 P (1): Natural resources [...] 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. • 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. • Article 30 (3): The Commissioner for Fundamental Rights and his or her deputies shall be elected for six years with the votes of two thirds of the Members of the National Assembly. The deputies shall protect the interests of future generations and the rights of national minorities living in Hungary. - Act CXI of 2011 on the Commissioner for Fundamental Rights The Activities of the Ombudsman for Future Generations An Overview - Competencies according to Act CXI of 2011: • to regularly inform the Commissioner for Fundamental Rights on his/her experience regarding the enforcement of the interests of future generations • to draw the attention of the Commissioner, the institutions involved and the public to the danger of infringement of the rights of a larger group of natural persons, especially of future generations • to propose the Commissioner to institute proceedings ex officio • to participate in the inquiries of the Commissioner • to propose the Commissioner to turn to the Constitutional Court • to monitor the realization of the National Framework Strategy on Sustainable Development adopted by the Parliament • to propose the adoption or modification of laws concerning the interests of future generations • to assist the presentation of the values of the Hungarian institutional framework for the interests of future generations through his or her international activity Influence on the Practice of the Constitutional Court - Decision no. 28/2017 (X.25.) • amicus curiae submitted jointly by the Commissioner and the OFG • interpretation of biodiversity in Article P (1) of the Fundamental Law • interpretation of the triple obligation towards future generations: preservation of choice, quality and access - Decision no. 13/2018 (ΙΧ.4.) • initiated by the President of the Republic, who relied on the arguments of the OFG • elaboration of the precautionary principle and the obligations towards future generations - Decision no. 14/2020 (VII.6.) • initiated by the Commissioner upon the request of the OFG • elaboration of the public trust doctrine Legislative Proposals - - 2019: Legislative proposal on the effective enforcement of environmental liability • financial guarantees for environmental liability • creation of separate budgetary funds • enforcement of environmental liability in connection with real estate • reform of the sanction system 2020: Legislative proposal on the protection of groundwater resources • Decision no. 13/2018 (IX.4.): groundwater resources form part of the common heritage of the nation principles of prevention and precaution, as well as intergenerational equity shall be implemented International and Other Activities - the Network of Institutions of Future Generations - Voluntary National Review of Hungary on the Sustainable Development Goals of the 2030 Agenda (2018) → Annex to the document of the High-Level Political Forum on SD (New York) - opinions, recommendations, awareness-raising reports on topics related to the interests of FGs, such as: • the preservation of national parks • protected species • the protection of soil, groundwater resources, landscape • water management Conclusion - the Hungarian model has an outstanding role both at the domestic and international levels: • influence on the domestic legal framework for the protection of the environment and future generations (Constitutional Court, Curia, legislative proposals, awareness-raising) • it could also serve as a role model for similar institutions to be established in the future - in comparison with the former green ombudsman a delicate balance shall be stuck between the competencies of FGs advocates and political bodies when defining the scope of their influence - despite the concerns arising from the concept of FGs, endeavors to include a future generations-perspective in decision-making shall not be hindered - the creation of similar institutions on a national level could contribute to the better representation of the interests and needs of FGS