Law in Public Space (HU)
Contribution from : Gabor Velkey, (attorney / HU)
- 1 Use of Public Space
- 2 Pedestrian circulation
- 3 Regulation on Noise
- 4 Freedom of Assembly
- 5 Memorial to the Victims of German Occupation
- 6 Memorial to the Soviet Heroes
- 7 More questions to be answered : call for contributions !!!
Use of Public Space
Public space, as a definition of - administrative - law, is understood to cover all places and areas in public ownership (i.e. in state or municipality property) which are open for public use and are entered into the real-estate registry as such. These are streets, squares, parks, etc. There are altogether 180 different kinds of classifications under which such spaces may be entered into the registry, but classification does not affect the legal status or right to use a public space. Much like in the case of any other legal definition, people tend to use the expression "public space" in a less strict and rigid way: they may treat public spaces as private (e.g.: planting flowers on the public land in front of their houses), and sometimes they may treat private space as public (e.g.: occupation of abandoned buildings or building sites, use of privately owned places which are however accessible to the general public).
As for the regulation of use of public space, the contitution of Hungary grants everyone the freedoms of movement, expression and assembly the exercise of which naturally entails the right to use public space. This said, the constitution does not mention a specific right to use public space explicitly, in fact the only two mentions of the expression "public space" occur in section XXII. subsection (3) which contains provisions which actually limit the scope of the right to use public space. There are many limitations of the right to use of public space, the most severe of them is of course imprisonment for criminal offense which bars a specific person from all use of public space, lesser limitations target types of activity and bar people from using public space in certain ways (for illegalized activity, living purposes, activities which may only be undertake in possession of a permit, etc.). Another way of disregarding these limitations - besides privatizing public space, or undertaking activities banned in such environment (public nudity, unauthorized sale of items, assembly without prior notification of authorities, filming without permit, graffiti, etc.) - is engaging in activity which is not illegal or banned per se, but overrides the institutional decision-making processes put in place, like guerilla gardening or yarn bombing. These may be called quasi-legal activities, beceuse - as shown by the pertinent case-law - Hungarian courts are reluctant to construe the act of adding a elements to objects in public space as vandalism unless the addition creates a very strong connection, like an irrevocable modification or a change which cannot be undone without damaging the object in question (e.g. welding, glueing, painting, etc.).
Act LXIII of 1999 assigns the task of keeping public spaces clean and ensuring their orderly use by the general public to the jurisdiction of municipality governments (i.e. city councils and the authorities under their supervision). These may pass decrees regulating use of public space so long as their provisions remain within the bounds of the laws. In Budapest, both the municipalities of the districts and the so-called capital municipality have established authorities to ensure public safety and the orderly state of roads and public spaces. The observance of the code of conduct and other rules regarding vehicular transport, as well as authorizing assemblies that use areas otherwise used for traffic falls within the jurisdiction of the police force. The planning and caretaking of public parks and gardens are generally handled handled by city councils through the establishment of municipality-owned companies.
The highway code regulates pedestrian and vehicular traffic extensively and in detail. The present code was introduced by ministerial decree 1/1975 (II. 5.) and it has been amended several times since its promulgation.
From the perspective of the Free Freedom action, the sections of the code particluarly interesting are those concerning pedestrian traffic.
- Section 21 of the code provides that pedestrians shall use the sidewalks for circulation. In the absence of a sidewalk, pedestrians may use the emergency lane, or curb, or bicycle lane (in this order) for transport, and - if none of these are available, or if all of them are in a state not fit for use - they may use the road. If pedestrians are using the road (see cumulative conditions above) they must do so moving in a single line, on the left hand side of the road, by the edge of the pavement.
- If a pedestrian carries an item or material the transport of which may - due to its size and dimensions - disturb orderly use of the sidewalk by regular pedestrians, then the pedestrian shall use the road, moving on the right hand side of the road, by the edge of the pavement. If such transport takes place during nighttime, the pedestrian must - in addition to the above - attach front and rear lights to the object being carried.
- A special rule put in place by section 22 of the code applies to so-called closed groups of pedestrians. In such cases emmbers of the group may use the road for transport - even if there is a proper sidewalk! Front and rear lights must be used during nighttime and responsiblity for the observance of the rules falls on the leader of the group of pedestrians. These rules shall not apply to groups of childre, who may only use the road in accordance with the provisions of section 21.
One must note once again, that these rules do not apply to practicing the freedom of assembly as provided by article VIII of the Constitution.
Regulation on Noise
Regulation on the issue of noise and vibrations detrimental to health is spread between state and municipality legislation. The basis of the limitation of the level of noise that may be emitted is article XXI of the Constitution which prescribes that "Hungary shall recognise and give effect tot he right of everyone to a healthy environment." This is a very important fundamental human right, but it often comes into conflict with other equally important rights, because the practice of certain other freedoms may entail emission of noise (e.g.: playing music as a way of practicing freedom of expression, organizing a concert as a way of practicing freedom of enterprise, construction/renovation activities undertaken on land in private ownership as a way of practicing the right to property, etc.).
It is therefore the role of the legislative power to strike a balance between these competing interests. Act LIII of 1995 on the general rules of the protection of the environment entrusts the minister for health to set the rules on protection from noise pollution and also authorizes municipality councils to deviate from said rules within a certain scope.
Ministerial decree 27/2008. (XII. 3.) establishes a very detailed regulatory regime concerning noise pollution and protection from noise. The appendices to the decree contain 7 tables elaborating the permitted level of noise corresponding to specific sources (industrial activity, recreational activity, traffic, constructions, etc.) and specific zones (urban residential, rural residential, recreational, commercial). For example in rural residential areas noise coming from industrial or recreational establishments may not exceed 50 dB between 06h-22h (daytime) and 40 dB between 22h-06h (nighttime). The corresponding figures for urban residential areas are 5 dBs higher and those correspondin to commercial areas are 10 dBs higher.
Taking the example of the municipality of district V. of Budapest, one finds that municpality decree 45/2012 (X. 11.) adds some further limitations:
- construction activities may not be undertaken between 18h-07h on weekdays and cannot be undertaken on weekends and national holidays at all, unless the mayor of the district issues a special dispensation.
- concerts may be organized in public space only between 10h-20h and in possession of a permit.
- assemblies under 1000 participants may be organized in poublic spaces between 10h-22h, unless the organization of the event falls under the scope of protection of article VIII of the Constitution (right to peaceful assembly).
Freedom of Assembly
Act III of 1989 elaborates the manner in which the fundamental human right to freedom of assembly may be practiced and puts very few limitations in place (participants may not carry arms, organizers must report the event to the police). Note, that the government and the majority parliamentary groups are contemplating the passage of a new act on assemblies which - according to some fears - may put in place additional limitations.
Duty of Organizer to Report
Currently, assemblies may be called without police permit, the duty of organizers to report is only put in place so that the police forces may take necessary actions for the protection of the participants (presence of ambulances, sealing the affected area off from vehicular traffic, counter-demonstrations, etc.). However, there is a very narrow scope of cases in which the police may refuse the request of the organizers if the event would disturb the operation of legislative assemblies or courts, or if transportation may not be diverted towards another route sufficient for accessing the areas affected. The police is under an obligation to decide within 24 hours from receiving the report from the organizers and in case of a refusal, accelerated non-contentious civil proceedings are made available to the organizers in order to challange the refusal.
Naturally, peaceful assemblies falling under the scope of article VIII (demonstrations, etc.) may take place at time periods earlier or later than the frame set by the above mentioned government and municipality decrees on protection from noise pollution.
Since the regulation entrusts organizers to fulfil the duty to report as well as other duties put in place by the pertinent laws and decrees (ministerial decree 15/1990. (V. 14.) on the tasks of the police force in connection with the organization of assemblies), spontaneous gatherings are somewhat problematic. These assemblies or demonstrations are not organized per se, but form in a spontaneous manner in response to the occurence of certain events (e.g.: citizens gather spontaneously to show their condolences to victims of a certain natural disaster or terrorist attack, or to show their outrage over a politician's actions, etc.).
It is obvious that in such cases it is not possible to report the event to the police beforehand. The Jurisprudence (Constitutional Court decision no. 561/B/2002) recognizes this fact and hence the case-law of Hungarian courts suggests that such demonstrations cannot be disbanded by the police on grounds of lack of proper prior report (see: Act II of 2012 on misdemeanors, section 189). In cases of spontaneous assemblies the authorities have to contrast the weight of the right to assembly with the weight of the public interest impeding the flow of traffic. This is a rather difficult task, but - as argued by the Hungarian Civil Liberties Union - a good rule of thumb is that the bigger the assembly, the more likely it is that it should be allowed to pass, because the number of protesting people is a good indicator of the importance attached to the issue concerned, and also because if the number of protesting people is low, then it is less likely that the demonstration seriously impedes the flow of traffic.
Extended or Continous Assemblies
Normally, the organizer mentioned the expected time of the beginning and ending of the assembly, but it may happen, that for some reason (e.g. signing a petition, moving the protest to another site, etc.) the particpants of the demonstration do not leave the site at the reported time.
Such assemblies are referred to as extended or continous assemblies. If the decision to extend the time of the assembly is made (suggested) by the organizer(s), then the organizer may be required to contact the authorities with a report as soon as possible (just like in the case of unexpected changes of the route of a procession for example). But it is important to note, that according to the position of the Hungarian Civil Liberties Union, the police has no right to disband the gathering if the crowd decides to stay in spite of the lack of such a decision (suggestion) on the part of the organizer(s). In such cases the rules on spontaneous assemblies have to be applied (including the above mentioned reference to impedition of traffic).
The pertinent provisions of the Constitution and the practice of the constitutional court support this interpretation, but one should also note, that disbanding demonstrations is generally unfavourable politically, and this may also play a role in the lack of propensity of governments to order police to put an end to extended assemblies.
Some recent examples of such extended or continous assemblies:
- The demonstrations at Kossuth Lajos Square (the square directly adjecent to Liberty Square) against Gyurcsány Ferenc, prime minister between 2004-2009, went on for 24 hours a day for more than one month (18.09.2006.-23.10.2006). They were eventually disbanded by the police on the grounds that arms were found on the site, a move which was later deemed illegal and unjustified by the decision of the Supreme Court.
- The demonstration against the Occupation Memorial at Liberty Square (colloquially referred to as the "Living Memorial") started on 01.02.2014. and though there have been intermissions, it is still going on. The organizers hold events, talks, and discussions, keep and recount memories and share opinions with passers-by and each other. A community has grown out of the initiative which supports the aims of many similar grassroots movements.
- The demonstration against the proposed constructions at City Park started in March 2016, and has been ongoing since, with a single change of site, with the protesters being present 24/7. A camp was set up in the park which has been used a base of operation for the various protesting activities undertaken by the demonstrators.
Memorial to the Victims of German Occupation
The recently erected monument (a.k.a. colloquially as "occupation memorial") sparked a renewed dialogue on national past and its interpretations, as well as on the issue of responsibility.
Re-allocation of Responsibility
The issue of the “occupation” is mentioned in the so-called National Avowal, which is the first part of the Constitution. The relevant thesis is the following: “We date the restoration of our country’s self-determination, lost on the nineteenth day of March 1944, from the second day of May 1990, when the first freely elected organ of popular representation was formed.” See also the 4 preceding theses.
The legal nature of this text raises a number of questions: the National Avowal is part of the Constitution but it is not edited the way legal norms generally are (not separated into sections or subsections), instead it is a continuous text composed of 26 theses and its contents are not really actionable (i.e. it is very difficult to imagine a situation in which one could reference parts of it before a court of law in order to substantiate a claim). Because of this, some have suggested that the National Avowal in fact lacks any legal nature, and that it is only a preamble of sorts. The professional discourse related to the issue was in connection with the way section 3 of article R of the Constitution is supposed to be interpreted. Now there is agreement within the legal profession, that the National Avowal is not enforceable, but it may be used as reference in order to support the legality of the position taken by the Constitutional Court or a regular court (though regular courts in Hungary generally do not refer to the text of the Constitution directly) for the interpretation of the rest of the Constitution.
But even besides the legal issues, the argument that a loss of sovereignty/agency occurred in a continuous manner is quite simply not accurate historically: it is true that the nation’s ability to position itself freely was very limited due to the allied occupation and the power of the soviet union, but the case had been such many times in history and the National Avowal does not go on to list those occasions and in the transition period between the end of the war and the establishment of the stalinist system (roughly 45-49) there were elections held, there was a multi-party system, there was freedom of press and so on. Some of these freedoms were indeed not as complete as they are supposed to be according to the European Convention on Human Rrights or the Charter of Fundamental Rights of the European Union, or to the Hungarian Constitution of ‘89 or 2012, but with even the earliest of the mentioned documents (ECHR) being only signed in 1950, there can hardly be any expectation on the legal regime in place between 1945-49 to satisfy their norms, besides, the regime in power before 14.03.1944 was a lot further away from guaranteeing these basic rights to hungarians than the 45-49 state of affairs.
Arguments Against the Memorial
This is why many Hungarians are alarmed by the erection of the memorial as it is designed, becuase it seems to represent an understanding of history which references the occupation not because agency was factually constrained (at least not for the entire time duration mentioned), but rather because a loss of agency/sovereignty translates to responsibility being lifted.
Some have argued that the inclusion of a certain interpretation of history within the National Avowal amounts to a limitation on the freedom of research (article X of the Constitution) and the freedom of thought (article VII of the Constitution), but it is now understood that this is not the case, on the one hand because the - as elaborated above - the National Avowal merely serves as a pool of reference for Constitutional Court judgements as opposed to being a directly binding and enforceable set of rules, and on the other hand because the Constitutional Court does not have the right to examine precieved contradictions within different provisions of the Constitutions and may only examine amendments to the Constitution from a procedural point of view (see article 24, section (5) of the Constitution).
Some minority groups (jewish religious organizations and organizations of ethnic roma) have protested the erection of the statue on grounds that the interpretation represented by it hurts the memory of the victims of the holocaust and pharrajimos.
- From the legal point of view, such argument could be made with reference to section 2:50 of the Civil Code on Rights in memoriam. Theoretically an action for damages and restitution for any non-material violation suffered by descendents of the deceased or - if the provisons of section 2:54 subsection (5) on communal action are considered applicable - by any member of a community. Such proceedings would have had to be started within a 30-day preclusive period, thoug one could argue that said preclusive period must not be deemed expired so long as the violation is ongoing. It is however very unlikely, that an indirect connection like this (i.e.: violation of the memory of descendants or community thereor, by the representation of an interpretation).
- Another possible manner of formulating this argument within the context of criminal law (in addtion to the civil law formulation mentioned above)would be recourse to section 333 of the Criminal Code which bans open denial of nazi crimes and communist crimes. According to this provision, "Any person who denies before the public at large the crime of genocide and other crimes committed against humanity by nazi and communist regimes, or expresses any doubt or implies that it is insignificant, or attempts to justify them is guilty of felony punishable by imprisonment not exceeding three years". However, it is extremely unlikely, that the mere representation of an interpretation which intendt to reallocate responsibility for the crime of genocide would be considered by any court as denial or implication of insignificance. In fact, a judgement to the contrary (i.e. one which established commission of the crime mentioned by section 333 in such an indirect case), would arguable constitute a violation of the freedom of expression.
Many scholars consider, that any limitation on or policing of opinions - including those on matters of genocide - are already gross breaches of said fundamental right. Note that even in spite of this, holocaust denial has been criminalized by some European countries (Austria, Belgium, Czech Republic, France, Germany, Greece, Israel, Italy, Lithuania, Luxembourg, Poland, Portugal, Romania, Slovakia, Switzerland and - by court practice - Netherlands).
Demonstration Against the Occupation Memorial
The construction of the memorial has been initiated by the government prior to the election in 2014. The publication of the plans, and later, the beginning of the construction sparked protests and many have stood up in opposition of the realization of the project. Several Jewish and Roma advocacy groups and representatives voiced their strong opposition, and in response, the prime minister, Viktor Orbán, halted construction during the campaing period leading up to the election in spring 2014, promising to engage in talks about the monument, but construction continued almost immediately after the election results giving him a new term came out.
A notable event taking place within the frame of the demonstration was the performance of Viktória Monhor.
For information on the demonstration as an example of extended or continous assemblies, see above.
Memorial to the Soviet Heroes
This monument (a.k.a. "liberation monument") also reflects on the question of occupation/liberation, and the polemy sorrounding it - like that surrounding the occupation memorial - is reflective of agency/responsibility, though in the recent years, possibly as a result of the prominance of the dialogue on the occupation memorial as well as certain political issues (e.g.: trade agreement with Putin's Russia, government position of Orbán's FIDESZ party, political moderation of JOBBIK), attention has been shifted away from the liberation monument.
Soviet Liberation, Soviet Occupation
Liberation by the Allied forces put an end to WW2, but the evaluation of that liberation is wildly different in Eastern European Countries from how liberation is seen by their Western European counterparts. This is largely due to the fact that the substantive provisions ordering democratic elections contained in part II (Declaration of Liberated Europe) of the protocols of the proceedings of Crimea Conference were breached by the Soviet Union and said breach was overlooked by the United Kingdom and the United States of America, which countries sacrificed the substance of the Yalta Declaration, while preserving it only in form. This meant that the Soviet Union was allowed to push its local stalinist protégés (local communist parties) into power in spite of their failure to gain majority at post 1945 elections held in former axis and axis-occupied countries. Hence liberation in the case of Hungary - and the rest of the would-be east bloc countries - amounted to a second occupation, because the "liberating" soviet armed forces remained within Hungary as occupiers until as late as 1989.
Due to this long period of foreign oppression, and the many human rights abuses committed by the red army and the local communists installed by the Soviet Union, any monument to soviet "liberation" is highly controversial, not only in Hungary, but all across Eastern Europe, even if it cannot be denied, that it was indeed the red army, which ousted ther german nazis and their local supporters from power in Hungary.
Legal Protection of the Monument
Many political parties as well as civil organizations have voiced their request to remove the monument, and there have been many examples of politically motivated vandalism as well, which led to the need for permanent police vigilance.
No government however, could succeed in removing the monument, even though some have a times voiced their agreement with the intension to do so. The reason for this, is that the monument is under the protection of an international treaty between Russia and Hungary entered into in 1995 and ratified by virtue of the passage of government decree 104/1996 (VII. 16.). The subject of the treaty is the protection and care of Russian military cemeteries in Hungary and Hungarian military cemeteries in Russia, and though no russian soldier is actually buried on Budapest's Liberty Square, the annex of the treaty mentioned the site as a "memorial" to fallen red army soldier and as such, the liberation monument falls within the scope of the treaty's protection. Because of this, no ruling government ever undertook to remove the monument, as there was a risk, that the Russian government could "retaliate" by ceasing to protect the Hungarian military cemeteries at Boldyrevka and Rudkino.
More questions to be answered : call for contributions !!!
Using Public Space for Living Purposes
- When is my being in a public space is considered « living » ? what human right is breached ?
Art in Public Space
- For what artistic action a permission is not requested?
- How can cityzens choose / influence the decision about statues and monument that are placed in public space?
- Can any object be considered a statue occupying public space?
- How can one donate a piece of art to a public authority?* What authorization is required to perform in public space?* Can we touch a statue?
- Can we dress it
- Under which conditions can a piece of art be destroyed?
- What permit is requested to install a statue in public space?
- What if the demand is rejected? (for a statue and for a performance)
- What authorization from a person or his family is requested to do a statue of this person in public space?
- Can we asked to see those authorization?
- For instance Peter Falk's authorization for his statue to sit in public space?
- When the legislation of a member state fails to defend Human Rights what could the cityzen do ? What could the other member states do?
- Is article 7 of the Lisbon Treaty good enough to protect a member state from breaching human rights?
- Given that all european member states have written Human Rights in there national constitutions, which create a unanimity, how could European Law could enforce them?
Proposals to improve law
- Which fundamental freedom are not well protected by Law (Hungarian Law as well as European Law)?
- How could we free freedom from bad legislation?