Decision 28/1994. on environmental protection, Constitutional Court of Hungary (May 1994)

Case 28/1994 (V.20) in the Constitutional Court of Hungary addressed reductions in protection of land. Here, plaintiffs argued that the Land Reallocation Act, which repealed the transfer of protected areas into State control – or, in other words, the Land Reallocation Act transferred protected areas back out of State control – reduced protections on the land and therefore violated Article 18 of the Constitution, which recognizes the right of all individuals to a healthy environment. The Court agreed, declaring that: 

[T]he right to a healthy environment, as defined in Art. 18 of the Constitution, incorporates inter alia the responsibility of the Republic of Hungary to ensure that the State does not reduce the degree of the protection of nature as guaranteed under law, unless this is unavoidable in order to enforce any other fundamental right or constitutional value. Even in the latter event, the point to which the degree of protection is reduced cannot be disproportionate to the goal to be achieved. 

Id. at pages 19, 21, 5 (English translation).

In describing the unique nature of the right to a healthy environment, and the often “irreparable” consequences of environmental damage, the Court declared that “the State is free neither to allow any deterioration of the environment nor a risk thereof.” Id. at page 15 (English translation). The Court also stated:

It follows from Art. 18 of the Constitution that the degree of protection already achieved is not to be reduced. Theoretically, the use of the protected areas could be retransferred from the management of environmental protection authorities to private owners, just as protected areas and areas targeted for protection could be privately owned or managed by private owners; the severity of the obligations imposed on the users must be increased in all of these cases so that there is no decrease in the degree and efficiency of protection.

Id. at page 18 (English translation).