Abstract
The right to peaceful assembly is one of the most important fundamental rights in a democratic constitutional state. It is through the exercise of this right that (among other things) freedom of expression and control of power can be exercised over the leadership of a country. However, the outbreak of the coronavirus pandemic in the spring of 2020 led to the introduction of special legal regimes in some countries, which also entailed restrictions on fundamental rights. Of these, the restriction of the right to peaceful assembly is of particular importance for the reasons outlined above. The present study examines the practice in European countries where the right of assembly was not only restricted, but also prohibited. The study describes the content of the restrictive rules and draws conclusions by analysing the constitutional court decisions that have examined them. An important conclusion of the study is that, in similar cases in the future, countries should act with greater leniency in respect of the right to peaceful assembly in order to protect against epidemics.
Keywords: right to peaceful assembly, special legal order, ban of the right of assembly, restriction of fundamental rights, constitutional court decisions, comparative law
I. Problem statement
The right to peaceful assembly,[2] as a fundamental right of communication and as a fundamental means of monitoring the democratic exercise of power,[3] is of great importance not only under normal law, but also under special legal order. However, due to the specific nature of the special legal order[4] (i.e. that the purpose of the special legal order is to restore as soon as possible the normal legal order, which has been disturbed, and to deal with and remedy the situation or state of affairs which has given rise to the special legal order) situations may arise, where, for example, the requirement to reduce social contact (e.g. in the event of a pandemic) or to maintain public safety (e.g. in a war or civil war situation) may limit the exercise of the right to assembly.
Due to the COVID-19 pandemic in spring 2020, various special legal orders were introduced across Europe (e.g. state of emergency in Hungary), which also entailed restrictions on various fundamental rights (e.g. the right to free movement through curfews). Although not in all European countries, in many cases the right to assembly was also restricted. In this study, I will review the practices of countries where the right to peaceful assembly was not only restricted, but also banned in order to mitigate the effects of the COVID-19 pandemic. Following a review of the regulatory practice in each of the (concerned) countries,
I will also examine the assessment of these rules by the national constitutional courts, which raises the questions: ad1) what were the reasons for the total ban on the right of assembly; and ad2) what conclusions can be drawn from the practice of the constitutional courts of each of the states concerned?
[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.
[2] For a comprehensive overview of the right to peaceful assembly, see: Barnabás Hajas: Kommentár a gyülekezési törvényhez: kommentár a gyülekezési jogról szóló 1989. évi III. törvényhez (Budapest: Wolters Kluwer 2018); also: Tamás Hallók: A gyülekezési jog és mások jogai, Miskolci Jogi Szemle 2020/1, 113–124., and Endre Orbán: A békés gyülekezéshez való joggal kapcsolatos alkotmányossági követelmények, Jogtudományi Közlöny 2017/6, 281–291.
[3] Indeed, in many cases, the mobilisation of the masses is done specifically to exert pressure. See more on the political nature of the right of assembly: Barnabás Hajas: Utcák, terek szabadsága (Budapest: Századvég 2014) 63–64.
[4] The purpose of this study is not to present the special legal order legislation and, in this context, to analyse the proclamation, objectives and functions of the special legal order. However, see the literature below for more details: Zoltán Nagy – Attila Horváth (eds.): A különleges jogrend és nemzeti szabályozási modelljei (Budapest: Mádl Ferenc Intézet 2021); also:
András Jakab – Szabolcs Till: Az alkotmányvédelem – különleges jogrend, in Lóránt Csink – Balázs Schanda – András Zs. Varga (eds.): A magyar közjog alapintézményei (Budapest: Pázmány Press 2020) 1033–1072.