Kinga Zakariás: The protection of health in the practice of the German and Hungarian constitutional courts[1] (ABSz, 2023. Különszám, 31-41. o.)

Abstract

The protection of health takes on particular importance in times of epidemics, when the individual rights of patients are opposed to the protection of public health, and in particular, the health of especially vulnerable groups to epidemics. The restrictions introduced in response to the Covid-19 pandemic made it clear that the public health and epidemiological public interest in health care can override the interests of the individual. In addition, the Covid-19 pandemic also highlighted the importance of clarifying the conceptual framework of the right to health, as only a coherent conceptual framework can provide a basis for resolving conflicts of fundamental rights. Therefore, in this study I undertake to present the normative content of the right to health in the view of German and Hungarian constitutional court practice.

Keywords: right to health, right to physical integrity, human dignity, health care, compulsory vaccination

I. Introduction

The protection of health takes on particular importance in times of epidemics, when the individual rights of patients (such as their right to health or physical integrity) are opposed to the protection of public health, and in particular, the health of especially vulnerable groups to epidemics (the elderly and people with chronic illnesses). The restrictions introduced in response to the Covid-19 pandemic (compulsory vaccination, curfews) made it clear that the public health and epidemiological public interest in health care can override the interests of the individual (e.g. by denying patients' access to usual health care during the epidemic, postponing surgeries, using tele-medication, and introducing vaccination schedules). In addition, the Covid-19 pandemic also highlighted the importance of clarifying the conceptual framework of the right to health, as only a coherent conceptual framework can provide a basis for resolving conflicts of fundamental rights.

Therefore, in this study I undertake to present the normative content of the right to health in the view of German and Hungarian constitutional court practice. The comparison is based on the fact that Article XX of the Fundamental Law of Hungary (hereinafter referred to as the Fundamental Law) explicitly includes the right to health, while the Basic Law of the Federal Republic of Germany (hereinafter referred to as the Basic Law) does not explicitly mention it, but according to the practice of the German Federal Constitutional Court the scope of protection of the right to physical integrity, as guaranteed in the first sentence of Article 2 (2) of the Basic Law, extends to human health. Accordingly, I will examine the conceptual framework within which the two bodies provide for the protection of human health. The practice of the German Constitutional Court is prominent in the interpretation of fundamental rights, since the conceptual framework it has developed determines the case-law of the Hungarian Constitutional Court with relation to several fundamental rights and even influences the practice of the European Court of Human Rights and the Court of Justice of the European Union. Therefore, illustration of the similarities and differences along with the reasons on which they are based, is particularly important in order to understand the different doctrinal solutions that ensure the protection of human health.

In the course of this study, I will first present the history of the right to health in international human rights instruments, with a view that they served as a model for national constitutions. The study then outlines the different regulatory models of the right to health in European national constitutions, highlighting the Basic Law and the Fundamental Law. The most extensive part of the study is a presentation of the content of the right to health in the German and the Hungarian constitutional court practice, seeking to answer the question of which model is health protection better served by. I start from the thesis that full protection can only be ensured by an autonomous fundamental right, specifically aimed at the protection of health.

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II. Protection of health in international human rights instruments and national constitutions[2]

The declaration of health protection in international documents was initially laid down in legally non-binding rules and later in international treaties. The Charter of the United Nations, referring to the interdependence between economic, social and cultural rights, stipulates that the United Nations (hereinafter: the UN) will promote the solution of international problems in the economic, social and health fields [Article 55 point (b)] through specialised institutions [Article 57 (1) and (2)] and the Economic and Social Council [Article 62 point 1.]. The Universal Declaration of Human Rights, in recognising the right to health care, declares the right of everyone to 'a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, medical care and necessary social services, and the right to social security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control' [Article 25 point 1.].

Among the specialised agencies of the UN, the World Health Organisation is particularly active in protecting human health. The concept of health as defined in the Preamble to the Constitution of the World Health Organisation, which states that 'health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity', is still used as a benchmark for defining the scope of protection of the right to health. This definition includes not only the conditions that determine the physical and mental well-being of the individual, but also social security, that is, all the conditions that ensure a state of complete well-being. The attainment of this broadly understood concept of state of health is defined as a human right in the Preamble to the Constitution: 'the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.' Then, Article 25 of the Universal Declaration of Human Rights expanded the content of the right to a standard of living adequate for health and well-being and defined each of its elements as a right: the right to food, clothing, housing, medical care and necessary social services, the right to insurance in cases of unemployment, sickness, disability, widowhood, old age and in all other cases where an individual loses his livelihood through circumstances beyond his control. The World Health Organisation's Declaration of Alma-Ata (1978) affirmed that 'health, which is a state of complete physical, mental, and social well-being, and not merely the absence of disease or infirmity, is a fundamental human right' and stated that 'the attainment of the highest possible level of health is a most important world-wide social goal whose realization requires the action of many other social and economic sectors in addition to the health sector.' Another specialized agency of the United Nations, the International Labour Organization, defends the right of workers to health: the preamble to its 1919 Constitution already stressed the importance of protecting workers in the event of work-related illnesses and accidents, and later adopted two important Labour Conventions on health and safety at work and on occupational health service.