Zoltán Massay-Kosubek

In 2010, a Hungarian Law was amended to allow municipalities to ban homeless people from public spaces. Although this law was ruled unconstitutional by the Constitutional Court, the Consitution has been modified to allow prohibition of homelessness in 2013. I’ve collected 10 reasons why is it totally contrary to European laws and values.

The incriminated text of the Constitution reads as follows:

Article XXII
(1) Hungary shall strive to provide every person with decent housing and access to public services.
(2) The State and local governments shall also contribute to creating the conditions of decent housing by striving to provide accommodation to all homeless people.
(3) In order to protect public order, public security, public health and cultural values, an act of parliament or a local ordinance may declare illegal staying in a public area as a permanent abode with respect to a specific part of such public area.

1. It is contrary to the Hungarian Constitution even though it has been included into the Fundamental Law. In its aforementioned decision No. II/01477/2012 of 12 November 2012, the Hungarian Constitutional Court declared that the restrictions of “residential habitation in public spaces” violate the right to human dignity. Although that incriminated text is part of the new Hungarian Constitution, there is a clear hierarchy within the Constitution: the right to human dignity (together with the right to life) is among the strongest constitutional rights which cannot be restricted even by the Constitution itself. Thus, the prohibition of homelessness in specific areas is clearly in contradiction with the Hungarian constitution itself. This is a legal fact, even though if the Hungarian Constitutional Court shall not examine the text of the Constitution.

2. It clearly violates European Fundamental Rights and Values. Although the legal protection of the Hungarian Constitution is limited as regards the violation of human dignity, there are important European legal provisions to protect homeless.
As regards European Human Rights, the European Convention of Human Rights provides legal protection comcermimg violation of Human dignity and the European Court of Human Rights can condemn even sovereign states in Strasbourg.
In the narrower EU legal framework, the Charter of the Fundamental Rights of the European Union is legally binding since the entry into fore of the Treaty of Lisbon (1 December 2009) in the vast majority of EU Member States, including Hungary. Article 1 of the Charter (see below) also contains the right to human dignity, as a Fundamental Right and the Court of Justice of the European Union located in Luxembourg can make legally binding decisions based directly on the provision of the Charter in any individual case.

Article 1

Human dignity

Human dignity is inviolable. It must be respected and protected.

3. The right to decent housing in the Constitution is just a political programme and not an enforceable legal obligation. Some defenders of the Criminalisation never forget to point out that the legal text also contains as “obligation” of the Hungarian State and local governments to provide “the conditions of decent housing”. However, as a matter of fact, paragraph (2) is not an enforceable right but only a political programme at Constitutional level. We can welcome the mention of the right to decent housing but it is too weak to protect the people from the behavior of the Hungarian state. Homeless people can be persecuted, fined and jailed based on paragraph (3) and paragraph (2) cannot prevent this from a legal point of view.

4. Homelessness is not only a Human Rights issue but also a public health problem.
There is a clear link between Health, Housing and Homelessness (see more in the following European Public Health Alliance (EPHA) article (No Place Called Home in Hungary for Homeless People). Homelessness is an extreme form of housing deprivation and it results poor health as a consequence. According to FEANTSA (the European Federation of National Organisations working with the Homeless) homeless are particularly affected by multiple morbidity including problematic alcohol or drug dependence, mental health issues, physical health problems and high rates of premature mortality.

(Number of Hungarian Homeless 1993-2011 – source of the photo www.bulvaros.hu

5. Criminalisation worsens homeless people’s mental health status and puts the stigma of criminal on them. Homelessness is visible in the whole EU, especially in crisis hit countries such as Hungary. However, homeless are not responsible for the crisis but victims of it and they are especially vulnerable. Making them subject to such repressive decisions can seriously damage their self-estimation, self-confidence and can put the stigma of ‘criminal’ on them.

6. The protection of “public order, security, health and cultural values” is not an appropriate reason to justify such an humiliating measure. By making a fair and equitable balance between the protection both the whole society and homeless people themselves, a core element is the approach taken by the State. Criminalisation justified by the interest of the society indirecty means that the State considers homeless people a ‘public enemy’ a society must be protected against. However, a more sensible and human social policy may consider homeless as partner and as part of the society.

7. Cleaning up the city centers hides the problem – and makes it even worst. Another argument is that the criminalisation can direct homeless to homeless shelters instead of the street. However, it might have the opposite impact. This video demonstrates the homeless-free zones of the Hungarian capital, Budapest. It is clear that due to the restrictions, homeless people will be less visible for social workers and restricting their habitual residence would make more difficult for homeless to ask for help both physically and mentally.

8. Criminalisation is neither efficient nor an appropriate ‘solution’. Homeless people cannot be provided with decent housing by such punishing measures. On the one hand, it demonstrates the anger of the states that it is not able to resolve the problem. On the other hand, it can deteriorate the physical and mental health condition of homeless which could make their chance to find appropriate housing even less likely.

9. Homelessness is a social and not a criminal issue. It cannot be swept under the carpet. Making it less visible is definitely not a solution. Social problems and poverty reduction would rather need “soft” measure: social issues, valuable time and work of social workers, and nonetheless: more time and patience.

(On the photo: Hungarian policemen give shoes to a homeless man, deserving the respect of the on-line community Source of the photo richpoi.com)

10. There are viable alternatives prepared by the Hungarian civil society. As the open letter of the European Public Health Alliance (EPHA) pointed it out, the Hungarian civil society put on the table viable alternatives and possible solutions such as scientific articles, relevant studies or a proposal for a possible Hungarian Homeless Strategy. Homeless people are victims and not the cause of the crisis. Instead of punishment, they deserve hope.

I remain at your disposal.

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