An Analysis of Legal Measures Adopted in Hungary to Combat the COVID-19 Epidemic

An Analysis

of Legal Measures Adopted in Hungary to Combat the COVID-19 Epidemic

1. Introductory remarks

The first case of SARS-CoV-2 infection in Hungary was detected on 4 March 2020. As of 6 April 2020, 744 cases have been diagnosed, 14,325 people are quarantined, 67 people have recovered, and 38 people have died.^[1] It is also worth noting that 12,148 tests for COVID-19 have been performed.^[2] These data should be assessed taking into account the population of Hungary, which is relatively small, as it amounts to 9,670,321 people (as of 28 March 2020), while the population density per km² is approximately 106.3 people.^[3]

2. Preventive and intervention measures taken by Hungarian authorities

2.1. Measures implemented before the detection of the first infection

The first action was taken by the Hungarian authorities already at the end of January 2020, one month before the first case of infection was detected in Hungary. An Operational Group for Protection against the Coronavirus Epidemic was created, and on 31 January 2020 it presented an Action Plan, which was implemented to locate and control all possible cases of infection in Hungary and to coordinate the activities of state authorities for the effective establishment of health care and epidemiological measures.^[4]

Even before any infections had been detected, the plan was to develop procedural rules for border traffic monitoring to prevent the spread of the epidemic, and legal instruments for border surveillance, with sanitary checks on persons who had visited the People's Republic of China during the fortnight prior to their arrival in Hungary and on persons who were in contact with confirmed infected persons.^[5] It was announced that thermal cameras and disinfection points would be installed at border crossings, and that medical equipment and personal protective equipment would be purchased for medical and border crossing personnel.^[6]

A free helpline (a so-called ‘green line’) and a website dedicated to epidemic risk issues were immediately launched, the performance of hospitals, means of medical transport (especially as regards transport from border points) and laboratories that were to perform tests was reviewed, and prisoners were assigned to the production of personal protective equipment.^[7]

As far as politics is concerned, an inter-party consultation on the measures implemented by the government in relation to the COVID-19 threat was held on 27 February 2020.^[8]

The efforts undertaken by the Hungarian authorities were therefore initially aimed at two main objectives, i.e. sanitary control of people arriving from locations with high virus transmission (at that time – mainly from China) to detect possible cases of infection as soon as possible, and preparatory measures to equip the medical services for their smooth functioning after the first infection was detected.

2.2. Measures implemented after the detection of the first infection

2.2.1. Measures for direct prevention of the epidemic spread

As indicated above, the first confirmed cases of SARS-CoV-2 infection in Hungary were announced on 4 March, and by 6 March there were already 4 cases, all involving foreigners.^[9] On the same day, it was decided that all the patients should be relocated to St Laszlo (Szent László) Hospital in Budapest, which was to be dedicated exclusively to patients diagnosed with COVID-19.^[10]

Further measures were implemented successively. The introduction of a state of danger throughout Hungary, which took place by Government Decree 40/2020 of 11 March 2020, should be considered a crucial move.^[11] It should be explained here that the Hungarian Constitution of 25 April 2011 (Fundamental Law of Hungary – hereafter: the Constitution) provides for an extensive catalogue of special states (Articles 48-54). It includes a state of national crisis (Article 49 of the Constitution), a state of emergency (Article 50 of the Constitution), a state of preventive defence (Article 51 of the Constitution), a state of terrorist threat (Article 51A of the Constitution), and a state of danger (Article 53 of the Constitution).^[12]

According to Article 53 Section 1 of the Constitution, a state of danger is introduced in case of a natural or industrial disaster threatening life and property in order to mitigate the effects of such events. A state of danger is declared by the government, owing to the fact that it has the power to introduce emergency measures as defined by the cardinal laws.^[13] In particular, the government has the right to issue decrees in which it may suspend or derogate from statutory provisions and take other emergency measures (Article 53 Section 2 of the Constitution). Government decrees are only valid for 15 days, unless the government extends them with the consent of the National Assembly (Article 53 Section 3 of the Constitution). The decrees always expire when the state of danger comes to an end (Article 53 Section 4 of the Constitution).

In accordance with Article 54 Section 1 of the Constitution, during the period of all special states, the exercise of fundamental rights may be suspended or restricted, with the exception of those set out in Article II of the Constitution (protection of human dignity and the right to life from conception), Article III of the Constitution (prohibition of torture and inhuman treatment) and Article XXVIII Sections 2-6 of the Constitution (procedural guarantees in criminal proceedings). However, when introducing such restrictions, the principles set out in Article I Section 3 of the Constitution should be preserved, i.e. first of all the introduced restrictions should have a statutory basis, be introduced for the protection of other constitutionally protected rights and values, and satisfy the proportionality principle. Any infringements of the essence of a given law are unacceptable.

By Government Decree 41/2020 of 11 March 2020, it was decided that border checks should be temporarily reintroduced at the borders where they were not carried out (i.e. with European Union Member States).^[14] The Decree also prohibited persons coming from Italy, China, Israel, Iran and South Korea, except for Hungarian nationals, from entering Hungary. Hungarian citizens arriving from the listed countries were subjected to compulsory quarantine at a designated site where a sanitary inspection (body temperature measurement) would indicate SARS-Cov-2 infection; in other cases, they were to undergo home isolation (defined as home quarantine). The Decree also prohibited the arbitrary departure from Hungarian territory of certain categories of persons, such as health workers, professional and voluntary reserve soldiers and employees of certain public administration departments.

Government Decree 46/2020 of 16 March 2020,^[15] which called for all persons over 70 years old to stay at home while providing them with sustenance, also had a considerable impact. Such persons were to notify the local authority of their place of stay and the fact that they would stay at home to comply with the government's call. In such a situation, it is the responsibility of the local authorities to provide the seniors with the necessary supplies. By the same decree, the Hungarian government decided to close down catering establishments, allowing only takeaway meals and the provision of catering services, and to close down commercial establishments, with the exception of grocery stores, chemical and sanitary stores and pharmacies from 3 PM to 6 AM.

The Decree also contains a number of restrictions related to organising gatherings and participation in cultural events. The Hungarian government has therefore decided to prohibit participation in the following:

1. dance and entertainment events;
2. gatherings, except for gatherings of religious communities, funerals and civil weddings;
3. sports events attended by the public;
4. cultural events, whether organised by public or private establishments (this applies to cinemas, theatres, art galleries, museums, libraries and other similar establishments).

Violation of the above prohibitions will result in a fine of HUF 5,000 to 500,000. Since 16 March 2020, teaching activities carried out by schools have also been suspended, but facilities can provide care for those children who cannot stay at home with their parents.^[16]

Government Decree 64/2020 of 25 March 2020 introduced a ban on the export of certain medicines from Hungary.^[17] Exceptions to the ban included the export of medical supplies for humanitarian purposes.

Further significant restrictions were introduced by Government Decree 71/2020 of 27 March 2020.^[18] The Decree ordered to limit social contacts as much as possible and to keep a distance of at least 1.5 meters from other people, except for those who live in the same household. This provision also applies to public transport. A ban on leaving the place of residence has been introduced, except for important reasons, which are listed in the Decree. These include:

1. performance of official or employee duties, conducting economic, agricultural and forestry activities, as well as making purchases necessary in connection with the above activities;
2. access to medical services, including mental health (visits to a psychiatrist, psychologist, psychotherapist);
3. recreational and sports activities and walks – only outside areas of residence or, if within residential areas, alone or together with another person living in the same household, preferably in green areas and keeping a distance of 1.5 m from other people;
4. getting married or attending a funeral of a close family member;
5. purchase of food and other necessities;
6. purchase of fuel at a gas station;
7. purchase of products in tobacco stores;
8. access to hairdressing and beauty services;
9. access to transport, cleaning and hygiene services;
10. access to services related to the repair and maintenance of means of transport and agricultural machinery;
11. access to waste management services;
12. in case of extreme necessity – access to services requiring physical presence in the fields of administration, banking, finance, insurance and mail;
13. providing animal supplies, walking animals, visiting a veterinarian;
14. parental rights and responsibilities;
15. religious activity.

These provisions also allow carers of the disabled, elderly and the underaged to leave the house.

Additional restrictions apply to persons over 65 years of age. In their case, shopping for food, medications and other necessary products should only take place in the morning between 9 AM and 12 PM. During these hours no people other than shop employees are allowed to access grocer's shops and pharmacies.

The police and military police are to supervise the enforcement of the Decree. The decree in question is valid until 11 April 2020, but may be extended.

The measures taken by the Hungarian government in the period following the detection of the first infection are therefore aimed at halting the increase in the number of viral infections and thus the incidence of the disease by isolation and reduction of social contact. These measures are implemented successively, based on the assumption that people coming in from outside the country are no longer the sole source of infection. As Prime Minister Victor Orbán pointed out when commenting on the introduction of the restrictions provided for by Decree 71/2020 of 27 March 2020, these measures are adequate and proportionate to the situation in Hungary, with the Bavarian solutions serving as a model for the Hungarian government.^[19] Particularly noteworthy are solutions aimed at safeguarding the life and health of older people, who belong to a group with a high risk of particularly severe COVID-19 illness. It seems that these solutions are rational and well thought-out, and specifying the hours when elderly people have the exclusive right to make the necessary purchases may have a positive impact on their health security.

Government communications also underline that citizens mostly respect the restrictions imposed by public authorities.^[20] It must be said that this is the best way to avoid the ‘Italian scenario’. As has already been pointed out in Ordo Iuris publications, the Italian government did issue a number of apt regulations to counteract the spread of SARS-CoV-2, yet it did not stop the outbreak mainly because the provisions of government decrees were not respected.^[21]

2.2.2. Measures to mitigate the adverse economic and social consequences of the epidemic

The Hungarian government is also implementing measures to counter the negative economic and social consequences of the COVID-19 epidemic. This concerns mainly solutions in the area of bond relations, public law burdens on entrepreneurs operating in particularly endangered sectors of the national economy, employee issues related mainly to allowing work to be performed remotely and easing certain formal requirements (notifications, registrations) related to the provision of services in the food trade and basic necessities sectors.

By Government Decree 47/2020 of 18 March 2020, the payment of receivables (the main sum plus interest) under credit, lease and loan agreements was suspended at least until 31 December 2020, which obviously does not affect the debtors' right to make timely payments nevertheless.^[22] These regulations concern contracts concluded before 19 March 2020. It was also stipulated that the annual interest rate on consumer credit agreements concluded after the entry into force of the Decree (i.e. after 18 March 2020) and not secured by a pledge must not exceed the Central Bank's basic interest rate plus 5%.

Unilateral termination of lease agreements for non-residential premises where one of the parties is an entrepreneur in the tourism, catering, film or other entertainment industry (organisation of cultural events, casinos, performing arts, sports-related services) has also been prohibited until 30 June 2020, subject to a ban on increasing the rent during the entire state of danger period. Moreover, other types of safeguards have been introduced for entrepreneurs operating within the economic sectors mentioned above:

1. total renunciation of public charges related to the employment of workers for the period from March to June 2020;
2. the only contributions to be paid by these entrepreneurs as employers are health insurance contributions up to HUF 7,710;
3. collection of specific contributions for the period from March to June 2020 has also been dropped.

For the period from March to June 2020, taxpayers providing passenger transport services were exempted from the flat-rate tax for small businesses. However, special regulations concerning the possibility of changing the work schedule and unilaterally ordering employees to work from home have been introduced for all employers. All collective labour agreements whose provisions prevented the introduction of such solutions were suspended by the Decree.

The provisions of Decree 47/2020 were partially supplemented. The tax exemptions were extended by Decree 61/2020 of 23 March 2020.^[23] They apply to employees, private entrepreneurs and partners in partnerships, and cover the period from March to June 2020. The same decree also provides for specific exemptions for small entrepreneurs operating in sectors such as taxi transport, hairdressing, various types of finishing works (wall painters, plasterers, electricians, plumbers, etc.), medical services (rehabilitation, nursing, care of the disabled, etc.), and tourism and entertainment in the broader sense.

Additional provisions for entrepreneurs were also introduced by Government Decree 48/2020 of 19 March 2020.^[24] The Decree enabled trade in food or other goods of everyday use without making the notifications and registrations required by law, subject, however, to the requirement to conclude a relevant agreement with a commercial or catering establishment. Mail order activities were also allowed without the need to make the relevant notifications and registrations.

In addition, the Hungarian government has maintained the payment of family-oriented benefits,^[25] and has decided to introduce some facilitation of non-cash trade.^[26] Court holidays have also been introduced (i.e. hearings are held only when necessary) and the activities of public offices have been reorganised, partly abandoning paper circulation and modifying some procedural issues for the state of danger period.^[27]

3. Act XII of 2020 on the containment of coronavirus

On 31 March 2020, the Hungarian National Assembly adopted a special law on combating COVID-19 (Act XII of 2020).^[28] The Act confirms previously issued government decrees related to the state of danger, obliges and empowers the Hungarian government to take further measures to combat the epidemic, including emergency measures and measures unforeseen in Act CXXVIII of 2011 on disaster management, and amends the Hungarian Criminal Code. The Preamble to the Act indicates that the adoption of the Act was also due to the anticipated difficulties in holding Hungarian National Assembly meetings during the period of the COVID-19 emergency.

Under Section 2(1) of the Act, the government is authorised to suspend the application of the legislation and to repeal it. However, such measures may be taken only to prevent, control and counter the epidemic and its harmful consequences, if it is necessary and proportionate to achieve that objective.

The National Assembly authorised the government to extend the validity of government decrees issued during the state of danger, but before the entry into force of the Act in question, until the state of danger ends. This is the solution provided for in Article 53 Section 3 of the Constitution, applied en bloc for all government decrees, but given that it refers only to decrees already issued, it is difficult to regard it as a ‘blank’ authorisation, as the opposition groups in Hungary would like to present it^[29]. It should also be noted that, according to the Act in question, the National Assembly may withdraw the authorisation granted before the end of the state of danger. The government has also been obliged to systematically provide the National Assembly – and in the event that it cannot gather, the President of the National Assembly and the leaders of parliamentary groups – with information on the measures implemented to prevent the epidemic.

This solution is intended to ensure that the legislative authorities have control over the actions of the executive authorities, which enjoy certain specific competences during the state of danger. The criticism of the illusory (or even non-existent) parliamentary control over the actions of the government is therefore unfounded.^[30] It should be noted that the logic and functioning of the cabinet-parliamentary system (which is currently adopted in Hungary) is based on the assumption that the government (the executive) is, in fact, an emanation of the parliamentary majority, which must give it a vote of confidence. It is therefore natural that a full division (separation) of powers is not feasible. This may look quite different in the presidential system, where there is no such correlation between the executive and legislative powers, and the Montesquieu principle of separation of powers is carried out in an incomplete but more consistent manner. It should be stressed, however, that such a situation does not occur in any of the European Union countries, because even in France, where a semi-presidential model was adopted during the period of the 5th Republic, the parliament influences the government's staffing, and a fully implemented presidential model functions primarily in the United States.^[31] However, as it is emphasised in the literature, it is often the case in the political practice that this principle of separation and balance of powers is treated as an ideal model, approached through certain legal solutions, as absolute separation of powers is not possible from an organisational and functional point of view.^[32] However, the mechanism of critical review of the government's actions by the political opposition in the parliamentary forum has been preserved, and the Hungarian government still has to seek the approval of the National Assembly for its actions. Moreover, the National Assembly may also withdraw its approval of government decrees that have been approved on the basis of the Act in question, which is clearly stated in the Act.

In the political practice of the cabinet-parliamentary system, judicial review of executive authorities exercising their powers is also crucial. The Act in question has secured the continuity of the functioning of the Hungarian Constitutional Court by allowing the President of the Constitutional Court to decide on holding the Court's plenary sessions and meetings using electronic means of communication and introducing other derogations from the Rules of Procedure of the Constitutional Court during the state of danger. Thus, it is possible to exercise the Court's power to control the constitutionality of legal acts issued by the government.

As the literature points out, one of the greatest challenges for the legislator is to adopt such a manner of the exercise of power in a crisis management period to ensure that the executive authority (the government) is able to effectively counteract crisis situations and to prevent possible abuses of power. This is to be achieved primarily through the principle of separation of powers and judicial review^[33]. Both these elements of the check and balance system have been guaranteed in the Act in question, and therefore any negative opinions formulated on this ground should be considered unfounded.

The Act also provides that during a state of danger there will be no previously scheduled elections or referenda. At present, there is no established practice in this respect and divergent decisions relating to the conduct of elections are made in different countries. The first round of local government elections took place in France, but the second round was postponed until 21 June 2020.^[34] Despite the large number of people infected with SARS-CoV-2, the German Bavarian authorities decided to hold the elections.^[35] In the United States, some state authorities have decided to postpone the primary election.^[36] The Polish authorities still maintain that the presidential elections will take place within the constitutional deadline, despite the fact that this decision is criticised by some.^[37]

The Hungarian Criminal Code was also amended by the provisions of Act XII of 2020. The rules on violations of quarantine, epidemiological isolation and surveillance have been tightened, and now provide for imprisonment of up to three years. In the case of complicity, the crime is punishable by one to five years of imprisonment. If a person dies as a result of a crime (crime aggravated by its consequences), the punishment is imprisonment for two to eight years. Preparation of actions aimed at making the fight against the epidemic more difficult is punishable by imprisonment of up to one year.

In addition, the amendment provides that a person who publicly declares or disseminates untruthfulness or manipulates facts in a place of danger and before a large audience, which could cause danger or distress to a larger group of people, is punishable by imprisonment of up to three years. Where the crime is committed during special states (and therefore a state of danger) and the offender's action may make it more difficult to ensure security, the penalty is more severe and includes imprisonment from one to five years.

4. Summary

The Hungarian authorities decided to introduce various measures to prevent and counteract the COVID-19 epidemic. In particular, the rapid reaction of the authorities in the period before the first infection was detected on the territory of the country, as well as the subsequent measures taken to ensure maximum social isolation and safeguard the health security of the elderly, who are in the high-risk group, deserve special recognition. The Hungarian government is also taking decisive action to counteract the negative social and economic impact of the epidemic, without hesitating to forego certain public contributions during the period when the disease is expected to peak and in the subsequent months (March to June 2020). A major controversy was stirred by Act XII of 2020, but the criticism levelled at it seems unjustified. The Act provides due guarantees for the protection of citizens' rights, and its provisions do not violate the constitutional regulation. The Hungarian legislature has retained both parliamentary and judicial control over the executive's actions during the state of danger.

Author: Bartosz Zalewski, Attorney-at-Law