Commissioner for Fundamental Rights and Ombudsman for Future Generations Take a Stand on a Procedure related to a Residential Noise Complaint
The principle of the rule of law and the requirement of a fair procedure, as well as the enforcement of the right to a healthy environment may be jeopardized by a property protection procedure conducted by the municipal clerk in which there is no legal response to a problem because the procedure cannot be successful from the start without accurate data supply, as was concluded by the Commissioner for Fundamental Rights and the Deputy Commissioner for Future Generations in their joint report.
The complainant turned to the Office of the Commissioner for Fundamental Rights because of a noisy restaurant operating on the ground floor of an apartment house. In her petition, the client complained that her application for property protection had been rejected by the municipal clerk on the basis of such an explanation which, in her view, contains unfulfillable conditions: she was supposed to attach such evidence to her application which she was not able to obtain.
In their joint report on case No. AJB-1073/2020, dr. Ákos Kozma and dr. Gyula Bándi disclosed that the application for property protection had been refused by the municipal clerk because in her view, the complainant had not specified accurately what she requested in the procedure, against whom she claimed property protection, she did not identify the accurate time and date of the offense, neither did she attach any items of evidence. Due to these deficiencies, no meaningful decision on the noise complaint was adopted.
It was established by the Commissioner for Fundamental Rights and the Ombudsman for Future Generations that failing to adopt decisions of substance may involve the violation of the right of applicants to a fair procedure. It would allow a more complete enforcement of the rule of law, the right to a fair procedure and the right to a healthy environment if the municipal clerk supported the presentation of the items of evidence required for making a substantial decision by drawing attention to the importance of these, and to the fact that she is not in the position to assess the content of the application in lack of such evidence.
The connection between property protection and the protection of the environment is undoubted, as it was also expressed in decision on principle No. 2220/2010: “the relation of the owner to the object often becomes an issue of secondary importance and the protection of the human environment from noise and air pollution, as well as other harmful effects comes to the foreground. In today’s law, property protection has become one of the instruments of the protection of the environment, which does not mean denying its connection to property right.”
Dr. Ákos Kozma and dr. Gyula Bándi concluded that the rule of law and the requirement of a fair procedure may be jeopardized, furthermore, in the case of case groups concerning typical environmental issues, a property protection procedure conducted by a municipal clerk in which there is no legal response to a problem because the procedure cannot be successful from the start without accurate data supply may also jeopardize the enforcement of the right to a healthy environment.
In order to avoid the possibility of the occurrence of any impropriety related to fundamental rights in the future, the Ombudsman and the Deputy Commissioner requested the Municipal Clerk of Kecskemét City with County Rights to conduct the property protection procedures by complying with the basic principles of the decree on property protection procedures, with special emphasis on providing information.
Furthermore, they asked the Minister heading the Prime Minister’s Office to consider the production of such universally available forms and information leaflets which will help the clients exercise their rights, requiring more detailed information on the possibility of legal remedy in the justification of the property protection decisions, furthermore, creating laws for enhancing the procedural options of the municipal clerk during the property protection procedure, with a view to clarifying the facts of the case.
Please, click on the following link for the respective report: AJB-1073/2020.