en
Reflection
Anti-Colonialism
The Hungarian Government’s legal trick to make homelessness invisible
Rights!
2019-05-08
By Elettra Repetto

Budapest is cold these days, and at first it would seem positive to not see many people sleeping in the streets, suffering from the cold and the rain. The reason for this absence, however, is far from a good one. Homelessness is indeed a problem in Hungary since the fall of the Berlin Wall. Since 1989, the Hungarian homeless population has increased due to the dismantling of the socialist system of public housing, the subsequent transfer of several properties to local authorities or private actors, and the concomitant failure of the following governments to provide decent housing at affordable prices.

Nowadays, these same structural problems constitute only a part of a longer list of causes that have led to homelessness and that still need to be tackled by the current government. Such a list includes: unemployment levels; a lack of adequate infrastructure for former prisoners; young adults who grew up in foster care; people with mental health problems or a past of addiction; and the lack of adequate programs for victims of domestic violence and minorities. In the end, rough estimates collected by the European Federation of National Organisations working with the Homeless show that the homeless population of Hungary amounts to about 50,000 people, one third of whom lives in Budapest. All of this, in addition to the fact that the capital city does not have enough places to host all of them, and the available centers are not suitable for sheltering people for long periods of time, should make homelessness quite visible. Still, this is not (anymore) the case. Throughout the city there is no sign of homeless people, not in the metro stations where they used to sleep, or in any other areas of the city. Why?

The Criminalization of Homelessness

The answer can be found in the newly approved amendment VII to Article XXII (3) of the Fundamental Law of Hungary, which states that living in public places on a permanent basis is prohibited and constitutes a petty offence to be punished even with detention. The new regulation stipulates that if someone is found using a public space as a living space, this person has to be removed from the “scene of offence”. No proceeding will be initiated if the person will promptly leave and pack her or his things. However, if the same person is warned three times within 90 days, the legal machine will start its course.

It is to be noted that these three warnings can occur in the same day so that a person, in the course of 24 hours, could already be put in front of a judge. During the proceedings the person has to be placed in pre-trial custody for a maximum of 72 hours, until the judge decides about the case; her or his belongings may be kept for a maximum of 6 months by the police. However, practice shows that police custody may last until the final decision, “which may take up to several weeks” (Hungarian Helsinki Commitee). For the first three times, the ‘perpetrator’ can receive a simple warning, be obliged to pay a fee, or be sentenced to community work, but on the fourth, there is no other legal option for her or him than a period of detention that may last up to two months. So, notwithstanding the fact that the state itself is incapable of providing adequate housing or shelter to homeless people, the same state treats as criminals those who simply “undertake self-solutions necessary for their own survival (…) attempting to maintain their own lives” (OL HUN 4/2018).

This law has been criticized by several local NGOs, including the European Federation of National Organisations Working with the Homeless, and by the UN Special Rapporteur on adequate housing Leilani Farha. She highlighted how “criminalization leaves homeless people with no viable place to sleep, sit, eat or drink … [and] can thus have serious adverse physical and psychological effects on persons living in poverty, undermining their right to an adequate standard of physical and mental health and even amounting to cruel, inhuman or degrading treatment” (OL HUN 4/2018). Moreover, this law will likely have the long term effect of pushing homeless people outside of the Hungarian cities to the outskirts or to the countryside, where they will become less part of the community and with less access to public services, sanitation, health care, and legal services. Because of this, they will become more deprived of the possibility to exercise their rights, being de facto denied their equal membership within society.

With the passing of this law the government is infringing its international obligations with regard to the right to housing, as established by Art. 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Art. 27 of the Convention on the Rights of the Child. While on the one hand Hungary is obliged, under international law, to provide for adequate housing to individuals, on the other hand it has an obligation not to dismantle those informal settlements individuals create for themselves, unless it has an equally valuable or better option to offer (A/73/310/rev.1). Informal settlements are often “an incredible accomplishment, a profound expression of individuals, families and communities claiming their place and their right to housing” (A/73/310/rev.1) and their destruction can constitute a breach of a fundamental human right.

This is not the first attempt to criminalize homelessness in Hungary. In 2012, the Constitutional Court of Hungary deemed unconstitutional a norm that aimed at sanctioning homelessness, because of its breach of human dignity (Decision no. 38/2012). In spite of this, the Hungarian Government passed another law in 2013 that prohibits sleeping rough in certain areas of the cities, especially close to monuments or sites of cultural interests (CLXLIX/2013). The law imposes penalties such as fines, social work or detention of up to two months to those who violate this norm three times within six months. However, this norm was not strictly applied in practice, such that from 2016 until a few months ago, there had been no registrations of legal procedures against homeless people. Besides, this norm was restricted to certain areas of Budapest, while the above-mentioned 2018 amendment to the Constitution prohibits homelessness everywhere in the country, de facto making homelessness itself a crime.

A Human Rights-Based Approach to Homelessness

One thing that Hungarian law-makers tend to forget, though, is that housing is not a commodity but a human right. To ensure its enjoyment to all people living on its territory, Hungary should implement policies and programs that target the needs of the affected people in an adequate manner, fulfill the other rights connected to the right to housing, and consider the specific issues facing homeless people and the root causes of homelessness.

This commitment should be translated into the approval of housing legislation recognizing “the right to housing in all of its dimensions” (A/HRC/37/53, p. 5), prioritizing those most in need and marginalized groups, implementing programs tackling homelessness among women and minors in particular, and especially considering the specific material and psychological needs of the disabled, migrants and refugees. To recognize the right to housing in its different dimensions means also to avoid discrimination and exclusion. This requires envisaging ways to prevent violence against homeless people, women and children in particular, and provide housing in a way that does not, de facto, strip people of their rights to participation in the political life of the community. The city of Medellin, in Colombia, provides a good example in this respect. The local administration improved public transport starting from the periphery and moving inward toward the city center. This has provided much-needed mobility to the people living in the suburbs allowing them to interact and take part in community life. Another good strategy is the one adopted by Portugal, which “has adopted a multi-prolonged action plan to eliminate homelessness by 2023 based on principles of non-discrimination and equality (…) which will include an inter-ministerial commission that oversees the implementation of the strategy” (A/HRC/37/53: 8).

An important point to be raised regarding participation is that it requires setting up “participatory mechanisms, to oversee housing programs implementation, such as housing councils, community based fora, commissions, committees or panels. It is critical that those who are homeless, living in informal settlements or in grossly inadequate housing be supported to participate in those mechanisms. To ensure effective participation, technical support and expertise must be made available drawing on local capacities where possible. Methods of communication and interaction should be accessible and respect community practices” (Ibid: 11).

Even when states decide to relocate people, they should still allow those living in informal settlements to participate, providing them with adequate information and establishing measures for them to file human rights complaints (A/73/310/rev.1). States should allocate resources to implement these projects in a timely and effective fashion and evaluate the success of the adopted strategies using process, outcomes and structural indicators, having in place measures to hold state bodies, which do not implement adequate policies to end homelessness, accountable. At the same time, accountability requires that homeless people are granted access to the judicial process, which means that they should be granted physical access to the courts and be provided with a lawyer, so that they may understand the charges they face.

Being committed to respect and promote the right to housing goes hand in hand with a serious responsibility to portray homeless people in a better light than the one the new Hungarian amendment suggests. Homeless people are not criminals but members of the society who must be treated equally regardless of the reasons for which they found themselves living on the streets. Homeless people are constantly intimidated and harassed, both by private individuals and public officials and the state needs to take serious steps to tackle behaviours that undermine homeless people’s dignity and self-esteem (A/HRC/37/53). It would be particularly useful to assess the different causes that lead a person to live in the street. This can help to address the structural problems linked to homelessness and to put in place an effective program that could answer the needs of individuals in an adequate manner.

Instead of spending public money on imprisoning people and forcing them away from the spaces they have come to know as home, the state should think about long-term strategies to host people. This would require not merely an economic effort but rather a much deeper reflection about the reasons behind homelessness. One of the most important ones concerning Budapest is the constant rise of rent costs due to an unregulated housing market. Addressing the root causes of homelessness is necessary. It is in fact evident how, if the structural problems leading people to sleep in the streets in the first place are not addressed, these same people will spend their life between one jail sentence and another (A/HRC/31/54).

The Way Forward: Amicus Curiae

While waiting for a human rights-based legislation, what is left to do is to resort to the Constitutional Court. There are indeed several aspects of amendment VII to Article XXII (3) of the Fundamental Law of Hungary that could raise doubts about its constitutionality.

First of all, such a strict law, which imposes detention regardless of the circumstances that might have brought a person to the street and her personal conditions, renders judges mere law executors, who lose their essential power of interpreting the law. Moreover, the mere act of sleeping rough does not pose any threat to public safety nor to national interests, as the Constitutional Court already established in its Decision no. 38/2012. The very same trial homeless people face when caught in the street falls short of the minimum degree of fairness, transparency, and accessibility required by Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and by the Hungarian Constitution. The measures of pre-trial detention, not to mention the requisition and destruction of the personal belongings, are disproportionate, if not against the right to liberty and the right to hold private property.

It is precisely before the Constitutional Court that the Streetlawyer Association is challenging the constitutionality of the newly approved amendment. To support these efforts, organizations, researchers and lawyers from Hungary and abroad should send amici curiae to the Court, to remind the judges of their role as defenders of the Rule of Law and human rights.

In these dark times, it is of utmost importance to stand up for those who have been stripped of their dignity and voice and to set a limit to what is acceptable from those in power. Civil resistance and solidarity are what is needed from all of us, to help build a fairer, more just society for all.


Elettra Repetto is a PhD Candidate in Political Theory and Human Rights at Central European University, CEU ‒ Budapest, where she is also Chair of the Migration Research Group. Her research focuses on Transnational Civil Disobedience and Political Participation.



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