Sándor Szemesi[1]: Leeway for limiting fundamental rights in emergency situations - with due consideration to the unique nature of the right to a healthy environment and Article P(1) of the Fundamental Law of Hungary[2] (ABSz, 2023. Különszám, 42-49. o.)

Abstract

The COVID-19 pandemic, and the subsequent war between Russia and Ukraine, brought unprecedented changes not only to everyday life, but also to the Hungarian legal system. In Hungary, first because of the COVID-19 pandemic and then because of the war between Russia and Ukraine, a special legal order has been in place from March 2020 onwards, essentially continuously (except for a short period from 18 June 2020 to 3 November 2020). Within the framework of this study, I consider the existing state of danger as a special legal order as a given, therefore I will not examine the specific issues related to its declaration or extension. Instead, the study focuses on (i) the test applied by the Constitutional Court in the case of restrictions of fundamental rights during the period of special legal order (Section II); (ii) the correlations between Article P and Article XXI of the Fundamental Law in terms of the power to restrict fundamental rights during the period of special legal order (Section III); (iii) the legal relationship between Article P and Article XXI of the Fundamental Law (Section IV); (iv) and, the application of the test of Article XXI of the Fundamental Law when restricting fundamental rights during the period of special legal order (Section V).The main conclusion of the study is that the test for the restriction of fundamental rights during a period of special legal order is only in theory the test of necessity and proportionality, but in reality the Constitutional Court adjudges the restrictiveness of fundamental rights on the basis of a specific test, the public interest and extinguishing standard. However, this test does not apply to provisions of the Fundamental Law which do not contain fundamental rights: in these cases, even a special legal order cannot give a derogation from the Fundamental Law.

Keywords: Article P, Article XXI, right to a healthy environment, state of danger, necessity and proportionality, public interest, extinguishing standard, public trust doctrine

I. Introductory thoughts

The COVID-19 pandemic has resulted in unprecedented changes not only in everyday life, but also in the Hungarian legal system. Hungary's Fundamental Law (following its sixth amendment)[3] distinguished six types of special legal order during the COVID-19 pandemic: state of national crisis,[4] state of emergency,[5] state of preventive defence,[6] state of terrorist threat,[7] unexpected attack[8] and state of danger,[9] without, however, these categories ever having been applied in practice before. In Hungary, since the entry into force of the Fundamental Law, the first state of danger (due to the COVID-19 pandemic) was declared by Government Decree No. 40/2020. (III. 11.) and lifted by Government Decree No. 282/2020. (VI. 17.). Then, except for a short period of time (from 18 June 2020 to 3 November 2020), Hungary has been in a constant state of danger since then, i.e. the Hungarian legal system operates within the framework of a special legal order.

Meanwhile, however, not only have the rules of the Fundamental Law governing special legal order changed significantly,[10] but also the justification underlying the declared state of danger declared. As of

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now, the Fundamental Law recognizes only three categories of special legal order: state of war,[11] state of emergency[12] and state of danger.[13] The justification for the sate of danger currently (as of December 2023) in Hungary is no longer the COVID-19 pandemic, but the armed conflict and humanitarian catastrophe taking place in the territory of Ukraine.[14]

In this study, I consider the prevailing state of danger as a special legal order as a given. Therefore, I will not examine the specific issues related to its declaration or extension.[15] Instead, the study focuses on (i) the test applied by the Constitutional Court in the case of restrictions of fundamental rights during the period of special legal order (Section II); (ii) the correlations between Article P and Article XXI of the Fundamental Law in terms of the power to restrict fundamental rights during the period of special legal order (Section III); (iii) the legal relationship between Article P and Article XXI of the Fundamental Law (Section IV); (iv) and, the application of the test of Article XXI of the Fundamental Law when restricting fundamental rights during the period of special legal order (Section V).

II. The special legal order and the Fundamental Law - from the necessity and proportionality test to the tests of public interest and extinguishing standard (?)

According to the Fundamental Law, the Government may adopt decrees (as provided for by a cardinal act) in the state of danger, suspend the application of certain acts, deviate from the provisions of acts, and take other extraordinary measures.[16] The Fundamental Law also stipulates that, under a special legal order, the exercise of fundamental rights (with the exception of the right to life;[17] the prohibition of torture, inhuman or degrading treatment;[18] the presumption of innocence;[19] the right of defence;[20] the nullum crimen sine lege;[21] and the principles of ne bis in idem[22]) may be suspended or restricted beyond the extent provided for under Article I(3)[23] of the Fundamental Law.[24] However, under the special legal order, the application of the Fundamental Law cannot be suspended.[25]

During the COVID-19 pandemic in Hungary and the subsequent state of danger caused by the Russian-Ukrainian war and the ensuing humanitarian catastrophe, no fundamental right was completely suspended, and accordingly, the Constitutional Court continues to assess whether the restriction of fundamental rights beyond the requirements of necessity and proportionality under Article I(3) had been constitutional in individual cases. The Constitutional Court has consistently held that a special legal order does not imply that fundamental rights can be restricted without limit: "the legislator of a special legal order was not intended by the Constitutional Court to be empowered either to introduce a restriction of fundamental rights that is not linked to the need to combat the danger or to restrict certain fundamental rights more than is justified by the exceptional circumstances".[26] It follows directly from this formulation of the Constitutional Court that, even in the exceptional case where the legislature of a special legal order decides to suspend a fundamental right, it may do so only to the extent justified by the prevailing exceptional circumstances, otherwise the constitutional provision that the Fundamental Law may not be suspended under a special legal order would be infringed.

At the very least, it is questionable what the standard for the restriction of fundamental rights in a special legal order could be, given that the Fundamental Law merely provide that a fundamental right "may be restricted beyond the extent provided for in Article I(3)". It would appear from the case-law of the Constitutional Court that the test for restriction remains the test of necessity and proportionality, and that the only difference would be in the application of proportionality.[27]