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.
[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.