Magyarország Alkotmánybírósága, Case 28/1994 (Hungary)
Hungary
Reinstating protections previously stripped from forests, Hungary’s Constitutional Court holds there can be no backward progress when it comes to environmental conservation and the right to a healthy environment.
Credit: GaborBalla, stock photo ID 1282035086
Casebook Info
In 1994, the Hungarian Court intervened when the legislature sought to sell forested lands that the communist regime had previously nationalized. Under land allocation reforms, the lands, once under state ownership and managed by environmental authorities, were slated for private sale. However, the Court deemed the State’s act unconstitutional and cited the constitutional rights to a healthy environment (R2HE) and life. The constitutional protections required the non-regression, or non-degradation, of environmental protections and policies unless doing so was justified to protect other constitutional rights. The Court ruled that the State had not met its burden of proof and called upon the legislature to ensure the Acts complied with Article 18 of the Constitution.
In 1992, Hungary underwent land allocation reforms. The legislation transferred forested lands, previously owned by agricultural cooperatives and managed by environmental authorities, to state ownership. The lands were then allowed to be designated for compensation for cooperative members outside protected natural areas. The 1993 amendment reduced the protection level of nationalized forests and parks, enabling their designation as “arable land” for compensation and potential private sale. In response to a petition seeking an annulment, the Constitutional Court of Hungary reviewed the matter to determine compliance with the State’s obligation to ensure the constitutionally protected right to a healthy environment (R2HE) and right to life.
In 1993, Hungary saw additional amendments that further reduced protections for nationalized forests and parks. The alteration allowed the areas to be categorized as arable land available for compensation, division and eventual sale to private entities. However, the majority of the Constitutional Court justices ruled in favor of restoring the previous protection levels on the lands. Citing Articles 18 and 70/D(2) of the Hungarian Constitution, which ensure R2HE and the rights to physical and mental health, the Court interpreted the provisions as obliging the State to safeguard both the constructed and natural environment.
R2HE stands apart from other fundamental rights for several reasons: (1) It stems from the state’s duty to safeguard the right to life, extending beyond humans to encompass the collective rights of “mankind” and “nature,” including non-human life and future generations. (2) It mandates the state to “protect the environment and maintain the natural basis of life,” necessitating legislative provisions that surpass those required for individual rights. (3) Its institutional safeguarding must account for the “exhaustibility of the natural basis of life,” irreversible damage, and the preservation of conditions for future human existence. Recognizing the paramount importance of R2HE, the Court invoked the principles of precaution and non-regression, thereby barring the State from constitutionally justifying any restrictions on the right.
Articles 18 & 70/D
The Hungarian Constitution protects R2HE and the rights to life and health.
“Humankind” and “Nature”
Expanding beyond the individual holders of constitutionally enumerated fundamental rights, the subjects of R2HE include present and future generations of humans, non-humans and the environment.
Non-Regression
Legal and environmental protections cannot be weakened unless necessary to realize other fundamental rights and any regression must be proportionate to the intended goal.
Plaintiff Strategies & Court Good Practices
Using an established domestic body of law
Using an established domestic body of law
The petitioner contended that the reforms infringed upon justice and violated the constitutionally safeguarded right to life and R2HE. The Court grounded its ruling on the inviolable protections outlined in the Hungarian Constitution, particularly in Articles 18 (now Article 21) and 70/D. The provisions imposed an affirmative obligation on the State to guarantee the realization of R2HE. The State’s responsibilities included safeguarding the natural foundation of life, instituting institutional safeguards and managing nonrenewable resources.
Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations
The Court underscored the exceptional determination required by the legislature to enshrine such a broad fundamental right in the Constitution. R2HE expands beyond individual rights to encompass the collective. It includes protecting the physical conditions necessary for life, non-human entities and the continuance of life into the future. The State’s intent was clear: to establish comprehensive institutional and legislative guarantees for the collective R2HE. This level of “resolve” prompted the Court to invoke the principles of non-regression and precaution as necessary considerations when drafting environmental laws.
Consequently, any regression in environmental protection could only occur if absolutely necessary to uphold other constitutional rights. The Court emphasized that any reduction in protections should be proportionate to the intended goal. The Court stressed the priority of precautionary measures to prevent irreversible harm, recognizing that restoring the original environmental conditions becomes exceedingly challenging once damage occurs. Therefore, the Act’s relaxation of environmental safeguards was deemed unconstitutional.
Reinforcing the status of the R2HE as a fundamental and independent human right
Throughout the proceedings, the Court dedicated considerable attention to delineating R2HE from other individual rights. It highlighted that R2HE is not merely an individual right or a state objective but an encompassing collective right, distinct yet interconnected with other constitutional rights like the rights to health and life. Instead of an “individual” being the sole beneficiary, R2HE extends to encompass “mankind” and “nature” as right-holders. Its reach spans from the present into the future. The Court considered the possibility that R2HE may extend to animals, plants and unborn generations, thereby creating potential legal obligations on the part of the State towards “nature” and “future mankind.”
Take Aways
In the 1990s, the global discourse on the nature and scope of R2HE within state constitutions sparked debates that continue to resonate today. This landmark case illuminated the Hungarian Constitutional Court’s pivotal role in delineating the expansive dimensions of R2HE. It elucidated key elements —such as non-regression and the precautionary principle— the rights of nature, the State’s affirmative obligations and the environmental rights of future generations. The Court acknowledged its pioneering stance in safeguarding a “third generation” constitutional right and directed the State to fulfill its legislative obligations.
Terms
Strategy
Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations
Invoking a government’s affirmative obligations under national and/or international law to regulate and implement policy to advance and monitor the protection of R2HE. One common instance of this strategy appears in the climate change context, where a plaintiff might argue that the government has taken insufficient action to mitigate climate change or reduce emissions. Another common context is that of corporate pollution, which might prompt a plaintiff to argue the government did not do enough to ensure a polluter’s compliance with environmental standards.
Strategy
Reinforcing the status of the R2HE as a fundamental and independent human right
Recognizing R2HE as a standalone human right – that is, a human right that does not depend on or emerge from any other human right or source, but which exists independently and self-sufficiently. Recognition of R2HE as a fundamental and independent human right can be accomplished, for example, by invoking the UN Resolutions on R2HE.
Strategy
Using an established domestic body of law
Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Burden of Proof
Burden of Proof describes the stringency and allocation of the obligation imposed on a given party in a legal dispute to prove (or disprove) an assertion, claim or defense that has been made. Differing burdens of proof can demand more or less detail, evidence and plausibility of a party, and vary across both claim types and jurisdictions. Whomever carries the burden of proof in a dispute must meet that standard for a court to consider the party’s assertion valid, cognizable and/or sufficient. In contrast, the assertions of a party that does not carry the ‘burden of proof’ are presumed to be correct and/or valid. Burdens of proof are usually pre-determined by law, but courts and other adjudicatory bodies sometimes have discretion to shift or modify the burden. Burdens of proof can bear decisively on the substance and outcome of any given legal dispute.
Collective Rights
R2HE is both an individual and collective right. Collective rights are rights that are granted or recognized to groups of people rather than to individuals. These rights are based on the idea that certain groups, such as minorities, indigenous communities, or cultural or linguistic groups, have specific needs, interests, and identities that deserve protection and promotion.
Intergenerational Equity
This international and environmental law principle provides that states and other entities must regard the impact of their public policies on the environment on present and future generations equally. In other words, actions that allow present generations to meet their needs and wants but sacrifice the ability of future generations to meet their basic needs and live lives of dignity contravene Intergenerational Equity.
Non-regression Principle
This principle of environmental and human rights law provides that governments cannot reduce existing levels of environmental protection unless doing so is strictly necessary to protect another fundamental right. Where such regressions are necessary, they must be proportional to the stipulated goal. Therefore, this principle protects against backsliding in the environmental governance, conservation and protection contexts.
Positive Legal Obligation
The legal requirement or duty imposed by law that compels individuals, organizations, or entities to take specific actions or engage in certain behaviors. These obligations are proactive in nature, requiring affirmative steps to be taken rather than refraining from certain actions.
Precautionary Principle
This environmental law principle provides that, where there exists a risk of serious and/or irreversible harm, scientific uncertainty about the extent of the harm or about the exact consequences of a particular action or process does not justify failing to implement measures to combat associated risks of environmental degradation or destruction. In other words, in the face of scientific uncertainty, authorities should still take measures to address environmental threats.
Prevention Principle
This environmental law principle provides that states and other actors must take meaningful steps to avoid environmental harms before they occur. In other words, if there is a tangible risk of environmental harm that is imminent and demands an emergency response, authorities are obliged to implement the necessary measures before damage is caused to the environment.
Rights of Nature
The concept of "rights of nature" is centered on the idea that natural entities, such as ecosystems, rivers, forests, or other natural elements, should possess legal rights just like humans do. This perspective suggests that nature itself should have intrinsic rights to exist, thrive, and evolve, independent of its usefulness to humans.
