A constitutional impropriety was caused in Hungary by the Gyurcsány- and then the Bajnai-government, as they did not provide for the creation and implementation of a comprehensive national gene conservation program, furthermore did not provide for the proper institutional and financial background of the state task concerning genetic diversity. Thus the financing and maintenance of gene banks have become absolutely uncertain, the existence of the gene bank of Érd is also seriously endangered – this was established by Sándor Fülöp, the Parliamentary Commissioner for Future Generations that is to say the Hungarian green ombudsman, in his recently adopted statement.
This statement was preceded by the examination of the green ombudsman launched on 5 March 2010, after it has become known to him that in case of the Research Institute for Fruitgrowing and Ornamentals of Érd (hereinafter Institute), operating as a company in the public interest, the obligatory transformation into a non-profit-making economic company had not taken place. Therefore the Court of Appeal of Budapest has ordered not validly the compulsory final settlement of the Institute. Due to this and the uncertain legal situation, the Hungarian fruit gene pool taken care of by the Institute, the gene bank plantations guaranteeing this care, and the breeding plantations maintained by the Research Institute, as well as the Institute’s operation have become endangered.
The ombudsman wished to reveal in his investigation, how it could occur that in case of the company of Érd the transformation into a non-profit-making limited liability company had not taken place, and as a consequence of this, the compulsory final settlement has been ordered, after all the company was liquidated.
The Commissioner had also examined, if the legal and institutional frames needed to perform the state tasks concerning the conservation of genetic diversity, and the finances are guaranteed duly by the state.
Furthermore it was essential to reveal, how in the actual situation the protection of the constitutional right to environment can be guaranteed, and what measures are necessary to take within its framework in order to save the fruit and ornamentals gene bank plantations, breeding plantations and breeding fruit-gardens taken care of by the Institute, respectively to fulfil the tasks of gene conservation continuously.
The ombudsman has established that the gene bank and the preserved gene sources of plants constitute the indispensable basic material for the genetic improvement of cultivated plants, which is essential in the respect of adaptation to the unpredictable environmental changes and of satisfying human needs in the future. Due to climate change, the use of domestic gene diversity that comes more and more to the limelight in the improvement work, is the starting point of the competitiveness of Hungarian fruit-production. The conservation of our indigenous regional species, the so-called “Hungaricums” is a national interest. Bringing the rich treasury of our forgotten species into the production may be the key to the food-autonomy of the country and its local communities.
There are old species in the gene bank plantations, types of species collected in course of the landscape selection, hybrids serving for further improvement, so in the territory of the company of Érd species of quince, cherry, apricot, pear, almond, nut, sour cherry, medlar, peach, plum and rose can be found.
The gene banks of plants constitute a part of the national wealth, and considering that the conservation of genetic diversity is a national strategic issue that influences fundamentally the essential conditions and environment of present and future generations, it is indispensable that the state should guarantee the preservation of wealth that provides for the task of gene conservation of plants. Otherwise the guarantees protecting the interests of future generations on a due level are not ensured.
The gene conservation performed for the sake of preserving the biological diversity constitutes part of the fundamental right to a healthy environment appearing in paragraph 18 of the Constitution.
However Hungary has no legal regulation that provides properly for the conservation of gene banks for future generations. The enforcement order of the international FAO Treaty on the gene sources of plants for alimentation and agriculture has not yet been issued until now. For the moment Hungary has no national gene conservation program either.
A further general problem of the institutional system of gene conservation is that due to the fragmented and poorly financed institutional system, performing and coordinating the activities related to gene conservation in the various institutions involves serious difficulties.
Beyond the deficiencies of regulation and institutions, the state financing of gene bank tasks has continuously decreased. With its resolution 2118/2006 (30 June) the government has ordered the privatization of the four fruit research companies, and then the Ministry of Agriculture and Rural Development has abrogated the public utility contract with the fruit researchers. Thus the financing and maintenance of gene banks have become absolutely uncertain. Even the existence of the gene bank of Érd is seriously endangered, as due to failing to transform, the court has ordered its final settlement.
According to the statement, the National Council for Property Administration, and the Hungarian National Property Management Co. (HNPM Co.) that is responsible for preparing, respectively implementing the decisions of the Council, has made the decision concerning the transformation with a significant delay (6 days before the deadline of loss of rights), thus endangering the material and spiritual values owned by the company, as well as the fulfilment of state task performed by the company.
Namely one could expect from the Council to proceed with due cautiousness in an issue of such significance from the future generations’ respect, and to make its decision providing a reasonable timeframe for the procedure of the registry court too.
The ombudsman pointed out that the state bears increased responsibility of the management of property that influences considerably the development of the environment, respectively the essential conditions, life chances of future generations. So the state interest has to be interpreted with respect to this, and therefore the state is bound to make its decisions, to take measures in the spirit of the requirements of the right to a healthy environment, that is prevention, sustainable development and the high level protection of the whole environment. Violating all these requirements and the expectable cautiousness, furthermore with the unjustified delay, the HNPM Co. has committed an impropriety related to the right to a healthy environment. It is obvious that in course of starting the procedure of registry court, the legal consequences of delay could still be prevented with appropriate and expectable cautiousness, but this did not happen.
The statement has also established that the procedure of the HNPM Co., respectively of the Council, as well as the impropriety arisen as a result of neglecting to transform the company, can not be interpreted in themselves without the governmental omissions emerging related to the institutional-financing problems of the gene conservation of plants. The neglect of transformation has ensued to a major part from the uncertain legal, institutional and financing situation, the responsibility of which is born without any doubt by the competent ministries and thus by the government.
Summarizing we can establish that the government has violated its obligation stemming from paragraph 18 of the Constitution, concerning the maintenance of the natural fundaments of life, and thus the government has evoked an impropriety related to the right to a healthy environment by not providing properly for the conservation of the national genetic pool of plants for future generations.
Following the carrying out of the legally valid compulsory final settlement of the company, it will cease to exist in its present legal form. It is the task of the government and the HNPM Co. to diminish the dangers arising related to the final settlement and to preserve the activity performed by the company, as well as the spiritual and material values.
Therefore the HNPM Co., in course of the procedure of final settlement, has to ensure the preservation of the company’s spiritual and material values with all the tools at its disposal. And partly independently from the final settlement, the new legal framework has to be created, which ensures the undisturbed pursuing of the activity performed by the company now.
Mr. Sándor Fülöp has initiated at the HNPM Co. that in course of the procedure of final settlement and following its closure the company should take care with all the legal tools at its disposal of the preservation of spiritual and material property owned by the company. Furthermore up to the moment, when the government provides for the elaboration of an integral and comprehensive national gene conservation program concerning the gene conservation of plants, as well as the conservation of genetic diversity, and for the regulation needed to its implementation, it should not perform strategic transformations affecting the fruit research companies.
Sándor Fülöp called attention to the fact that managing the gene pool of plants is a strategic issue claiming proper professional foundation and harmonization, as in case of performing the management without legally fixed guarantees, the right to a healthy environment may be violated.
12 August 2010