Severity of law ‘unavoidable’

Is there a precedent in Europe for such a strict legislative action? Can citizens’ fundamental rights be curtailed in case of a serious epidemic? Is it a valid criticism that the adopted legislation grants full powers to the government?

The answer to the last question is a clear “no.” One and a half weeks ago, the French National Assembly passed an act that provides for the introduction of universal measures to limit the freedom of movement, assembly, businesses and the use of goods and services. While French legislators are talking about a healthcare catastrophe, French authorities are doing everything they can, within the framework of their constitutional system, to slow down the spread of the epidemic. One of the lightest sanctions is a maximum fine of EUR 135 for those who leave their homes without a justifiable reason. Violators of France’s epidemiological quarantine or curfew will have to bear the legal consequences of a misdemeanour as well.

Similarly, the Hungarian legislative package enables authorities to undertake firm and definitive action against those that hinder the country’s defence against the coronavirus. In France, if the violation is repeated within 15 days the fine can reach EUR 1500. In the case of four violations within 30 days, the misdemeanour turns into a felony and may result in a maximum fine of EUR 3700 and up to six months of imprisonment.

What do we mean by “epidemiological protection”? This is in fact one of the cornerstones of Hungary’s Coronavirus Protection Act.

The act orders the sanction of the obstruction of emergency measures aimed at protecting the public health that limit citizens’ free movement and certain patient rights, for example the isolation of patients or those suspected of carrying the virus. Beyond the epidemiological measures put in place by the chief medical officer, such steps can also be taken by government agencies as well as regional and district offices. According to Hungary’s modified Criminal Code, the base punishment for committing a felony is up to three years of imprisonment, which is a feasible and proportionate sanction at a time when the effective management of an epidemic is required.

Is it necessary to apply the severity of criminal law in this situation? What is the main message of the Criminal Code modification?

The application of criminal law is unavoidable. Those who obstruct our common defence against the spread of the coronavirus epidemic commit an action that puts Hungary’s national, societal and economic order in jeopardy while threatening the lives, health, security and other fundamental rights of other citizens.

Is there any constitutional guarantee that citizens’ rights will only be limited to a necessary degree? Is there any legal assurance that the government is granted special powers only for the duration of the epidemic?

Any restriction on rights can only be based on the law, so, in a way, the new law is the most secure guarantee in and of itself. The degree and duration of the measures introduced during the special legal order shouldn’t be higher than what’s absolutely necessary. Article I of Hungary’s Fundamental Law makes this clear: “A fundamental right may only be restricted to allow the effective use of another fundamental right or to protect a constitutional value, to the extent absolutely necessary, proportionate to the objective pursued and with full respect for the essential content of that fundamental right.”

Our constitution details the tasks of constitutional bodies at times of emergency in a way that is fortified within a framework of guarantees. To use a historical comparison: Decrees put in place in such situations are similar to an ukase, or edict, in that they are a strict order and instruction rather than an arbitrary command. The reason for this, and the main principle behind the law, is that order and discipline must be strengthened in order to avoid chaos.

In sanctioning those who spread false facts or fake news about the epidemic, are we only targeting the press?

No, of course not. The legislation will apply to anyone who claims and proclaims to the public any falsehoods or misrepresentations that may hinder or obstruct the effectiveness of the defence against the epidemic. The regulation allows for special criminal prosecution of the spreading of false and misleading information that is capable of causing confusion and anxiety in a society that is much more sensitive to misinformation in these circumstances.

As many have pointed out, we cannot expect outside support and good guidance to remedy the situation; this is clearly a national task that we now have to cope with, and we are aware of our own circumstances. Is this truly the case?

The Hungarian national disaster will not be resolved by Brussels nor by the UN but by Hungarians themselves. While the Hungarian government spent HUF 245 billion on the epidemic from its central budget as of the end of March (nearly two-thirds of this went to the purchase of equipment), the European Union has not provided any resources for our defence. Additionally, the EUR 37 billion “rescue package” that the European Parliament voted to make available in the meantime largely covers amounts requested from the EU by some member states before the outbreak; that is, there is no significant additional support or assistance from the EU for Central Europe.

Where, in particular, does the Fundamental Law of Hungary allow the government special leeway in preventing an epidemic or health disaster?

Articles 53 and 54 of the Fundamental Law of Hungary enable the government to take all necessary measures in addition to the disaster management legislation, apart from the specified extraordinary measures and rules, and adopt all necessary normative provisions to prevent a disaster.

From the point of view of Hungary’s constitutional history, can we find any precedent for extraordinary legal order as it is defined in the existing Fundamental Law?

Yes, of course. The relevant part of the former constitution – which was an entirely new law but formally an amendment to the constitution of the 1989 regime change – stated that, in emergency and preventive defence situations, the government may, on the basis of the authorisation of the National Assembly, make regulations and measures other than those of certain laws. The Coronavirus Act, in keeping with this constitutional spirit and requirements, makes it clear that the regulation is not applicable in other emergencies and that the recent statutory regulation applies only to this particular legal situation.