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 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]

Ön itt egy cikkrészletet talál. A teljes írást az Alkotmánybírósági Szemle nyomtatott változatában olvashatja el. Előfizetni a folyóiratra itt tud.

^[1] The findings expressed in this study reflect the author’s own opinion and cannot be considered as the official position of the Constitutional Court. The author would like to thank the University of San Francisco School of Law for providing all the technical facilities, professional support and consultations necessary for the preparation of this study.

^[2] 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.

^[3] Sixth Amendment to the Fundamental Law of Hungary (14 June 2016), Article 1.

^[4] Articles 48 and 49 of the Fundamental Law.

^[5] Articles 48 and 50 of the Fundamental Law.

^[6] Article 51 of the Fundamental Law.

^[7] Article 51/A of the Fundamental Law.

^[8] Article 52 of the Fundamental Law.

^[9] Article 53 of the Fundamental Law.

^[10] The Ninth Amendment (22 December 2020) and the Tenth Amendment (24 May 2022) to the Fundamental Law of Hungary. The amended rules of the special legal order entered into force on 1 November 2022. See e.g. Ungvári Álmos: A különleges jogrendi szabályozás átalakítása: az Alaptörvény kilencedik és tizedik módosítása, Alkotmánybírósági Szemle 2022/1, 2–14.

^[11] Articles 49 and 52–56 (common rules for special legal order) of the Fundamental Law.

^[12] Articles 50 and 52–56 (common rules for special legal order) of the Fundamental Law.

^[13] Articles 51 and 52–56 (common rules for special legal order) of the Fundamental Law.

^[14] Government Decree No. 424/2022. (X. 28.) on declaring the state of danger due to the armed conflict and humanitarian catastrophe in the territory of Ukraine, and in order to eliminate and manage the consequences of these in Hungary. According to the currently effective Article 5 of the Government Decree, as amended by Government Decree No. 515/2023. (XI. 22.), the state of danger (originally declared by the Government for 30 days) is now in force until 24 May 2024, and there is no legal obstacle to a further extension of the state of danger.