Case 28/1994 (V.20)

Download Judgment: English
Country: Hungary
Region: Europe
Year: 1994
Court: Constitutional Court
Health Topics: Environmental health
Human Rights: Right to a clean environment, Right to life, Right to property
Tags: Environmental degradation, Precautionary principle

The petitioner claimed that that s. 13(7)(4) of Act II of 1993 on Land Reallocation and Land Distribution Committees (the “Land Reallocation Act”) violated Article 18 of the Constitution of Hungary (the “Constitution”) and requested that the Constitutional Court declare an annulment of the provision.

The Land Reallocation Act repealed s. 19 of Act II of 1992 on Transitional Rules and on the Entry into Force of Act I of 1992 on Co-operatives (the “Transitional Rules”), which section had established that the protected areas and areas targeted for protection “must be transferred to state ownership and the management of environmental protection authorities.” The degree of protection under the original Transitional Rules was reduced in 1992 by the amended and extended text of s. 15 of the Transitional Rules. In repealing s. 19 of the Transitional Rules, The Land Reallocation Act effectively reduced the areas managed by cooperatives that must be transferred into state ownership to “areas in state ownership which currently or prospectively belonged to a higher class of protection or fell within the scope of international conventions.”

The petitioner claimed that the decrease in protection by the Land Reallocation Act was unconstitutional in that it violated Article 18 of the Constitution (providing a right to a healthy environment).

The Court held that the reductions in protection in 1992 and by the Land Reallocation Act were contrary to the requirements under Article 18 of the Constitution and therefore nullification was required. The Court called upon the legislature to incorporate into law provisions that would comply with protection requirements under Article 18 of the Constitution.

The Court explained that Article 18 of the Constitution recognized the right of all individuals to a healthy environment and that this right was one of the ways in which Hungary implemented the human right to physical and mental health. The Court determined that the State must protect human life, which extended to institutional protection of non-renewable resources and “the conditions for the lives of future generations.” The Court acknowledged that the right to a healthy environment was somewhat unique in that, unlike other social rights, it was not identified as an individual right. The right was dependent on institutional protection as the prevention of damage was more important than individual remedies. The Court noted that the degree of institutional protection was not arbitrary, but rather dependent on (a) the exhaustibility of the natural basis of life, (b) the irreversibility of environmental damages, and (c) the fact that environmental protection was required for the continuance of human life. Once protection was established by the State, these standards of protection could not be lowered unless necessary for the realization of other constitutional rights. Even in such situations, the degree of protection could only be reduced in proportion to the stated goal.

If the State made a determination, before passing the Transitional Rules, that the turning over of land to management by the State was the most effective way to ensure protection, then a reduction of the land to be managed by the State decreased the amount of protection. The State could make this reduction if it simultaneously established more severe restrictions on the use of land by the new private landowners. The Court found that the reductions in protection of the environment stemming from the amendment of s. 15 of the Transitional Rules in 1992 and the Land Reallocation Act were not justified by a necessity to realize other constitutional rights. The Court also found that the State did not establish more severe restrictions on private landowners. As such, the legislation resulted in less protection of the environment and violated Article 18 of the Constitution.

Two judges dissented, arguing that Article 18 of the Constitution did not prevent the State from “reducing the degree of environmental protection guaranteed by the legislation, unless it is unavoidable in order to enforce other fundamental rights or constitutional
values.” Rather, Article 18 of the Constitution required that the State maintain a level of protection defined by both international and domestic legal standards, but did not require “neither the maintenance of a given degree of duties the State accepted and enforced voluntarily in the past, nor that of a standard that arose from a system of conditions.”

“Article 18 of the Constitution lays down that the Republic of Hungary acknowledges and enforces the right of all individuals to a healthy environment. It follows from Art. 70/D(2) that one way in which the Republic of Hungary implements the human right to ‘the highest possible degree of physical and mental health.” Section III.1.

“The duties of the State must include the protection of the natural basis of life and must extend to the establishment of institutions for the management of non-renewable resources…The duty of the State to provide objective, institutional protection extends to human life in general – to human life as a value, that is – and this includes ensuring the conditions for the lives of future generations.” Section III.1.

“…[T]he right to environmental protection per se is primarily an independent and self-contained protection of institutions – that is, a distinct fundamental right exceedingly dominated and determined by its objective aspect of institutional protection. The right to a healthy environment raises the guarantees for the implementation of the state duties in the area of environmental protection, including the conditions under which the degree of protection already achieved may be restricted to the level of a fundamental right. Due to the distinctive features of this right, what the State ensures by the protection of individual rights elsewhere it must ensure in this case by providing legal and institutional guarantees.” Section III.3.

“Hence, the degree of institutional protection of the right to a healthy environment is not arbitrary. Besides the dogmatic peculiarities outlines above, the key factor in determining the degree of protection is the three-pronged raison d’etre of environmental protection – the exhaustibility of the natural basis of life, the irreversibility of a substantial part of environmental damages and, finally, the sheer fact that these mark the conditions for the continuance of human life.” Section III.3.(c).

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