Abstract
The balance between security and freedom is not permanent: the more you feel your security endangered, the more you are willing to sacrifice freedom. In the latest times this statement was verified; during the pandemic people gave up such a great part of their freedom they would not have believed earlier. How long should security last and where is the point where freedom becomes emphasised again? Using the example of the right of assembly, this paper examines the regulations some countries introduced, whether they had constitutionality control, and if so, what decisions the constitutional courts delivered. After that, the paper analyses how the regulation on emergency measures changed in Hungary.
Keywords: pandemic, state of emergency, freedom of assembly
I. To begin with…
According to the classic thoughts of Thomas Hobbes, by freedom in the original sense of the word we mean the absence of external obstacles. These obstacles often divert a part of a man’s strength from what he wishes to do, but they cannot prevent him from using the remaining part of his strength according to the dictates of his judgment and reason.[2] He adds that freedom is not universal; some parts of freedom must be given up for the purpose of security.
The balance between security and freedom is not permanent: the more you feel your security endangered, the more you are willing to sacrifice freedom. In the latest times this statement was verified; during the pandemic people gave up such a great part of their freedom they would not have believed earlier. Agencies located individuals by tracking cell phone information,[3] Covid vaccination has practically become obligatory,[4] governments introduced curfews and took many other measures, which we could only read about in George Orwell’s novels before. All of them were basically supported and approved by the vast majority of the public and the national constitutional courts − for the sake of security.
[1] This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service, with the support of the AURUM Lawyers’ Club for Talented Students Foundation. I am grateful to Samo Bardutzky, Agnieszka Bień-Kacała, Andrea Erdősová and Giorgi Goradze for providing information on the regulation.
[2] Thomas HOBBES: Leviathan (Oxford: Oxford University Press 1998) 86.
[3] For the challenges Covid caused to information privacy see Clarisa LONG: Privacy and Pandemics, Journal of Constitutional Law 2020/1, Special Edition, 83–90.
[4] HORVÁTH analyses the case law on mandatory vaccinations with regard to Austria and Germany. Attila HORVÁTH: Mások élete? A kötelező COVID-oltások a magyar, a német és az osztrák alkotmánybírósági döntésekben [The Lives of Others? Mandatory COVID vaccination in the case law of Hungarian, German and Austrian constitutional courts], Állam– és Jogtudomány 2022/3, 21–28. He concludes that different courts used different standards, but they generally found the measure proportionate. As for the analysis of the decisions of the Hungarian constitutional court in the issue see Lóránt CSINK: Cél vagy eszköz? Az Alkotmánybíróság határozata az egészségügyi dolgozók köte-lező védőoltásáról [Purpose or Tool? The decision of the Constitutional Court on the Mandatory Vaccination of Health Care Workers], Jogesetek Magyarázata 2022/1, 14–18.