12 August 2020
Amendments introduced as of 18 June by the so-called Transitional Act provide the Government excessive powers that can be applied with a reference to an epidemic, with significantly weakened constitutional safeguards. Other provisions for example on asylum, the powers of the military forces, and data protection also give rise to concerns, NGOs say.
The state of danger was terminated by the Hungarian Government as of 18 June 2020, and the Authorization Act, giving the Government excessive powers for the period of the state of danger, has also been repealed as a consequence. However, on the same day, the so-called Transitional Act came into force. The Transitional Act fundamentally alters the legal framework pertaining the to “state of danger” (a special legal order) and the “state of medical crisis”, and extends the Government powers in both scenarios. The joint assessment paper by Amnesty International Hungary, the Eötvös Károly Institute, the Hungarian Civil Liberties Union and the Hungarian Helsinki Committee explains these changes in detail, and assesses other provisions of the Transitional Act concerning fundamental rights.
The joint assessment paper warns that the Transitional Act has inserted the Authorization Act’s much-criticized provision, giving the Government a carte blanche mandate, into the respective legal framework for a state of danger. This means that if in the future the Government declares a state of danger again, it will automatically have a carte blanche mandate to rule by decree.
Furthermore, the Transitional Act significantly extended the powers of the Government in a state of medical crisis, and the scope of issues the Government may regulate by decree in a state of medical crisis. The state of medical crisis can be declared by the Government in an ordinary legal order, and may initially last for six months, but may be extended indefinitely afterwards. Parliamentary approval is not needed to keep the decrees adopted under a state of medical crisis in force, unlike in the case of the decrees adopted in a state of danger. Thus, due to the amendments included in the Transitional Act, a similar situation may occur in a state of medical crisis as the one created by the repealed Authorization Act, where the Government has discretion for a non-specified period of time to adopt measures via decrees that regulate the fundamental aspects of life and significantly restrict individual freedoms. In parallel to terminating the state of danger, the Government declared that there is a state of medical crisis, meaning that since 18 June, these extended powers of the Government apply.
According to the joint assessment paper, some of the Transitional Act’s further provisions are to be welcomed and seem to be indeed transitional and necessary. However, at the same time, the Transitional Act also contains rules that endanger the exercise of fundamental rights, or give rise to severe constitutional concerns for other reasons, such as the following ones:
- certain provisions pertaining to the operation of the Constitutional Court;
- the unclear wording in relation to exercising the right to freedom of assembly;
- several provisions affecting data protection and the freedom of information;
- the discriminatory nature of fines imposed for violating the rules of home quarantine;
- the extension of the rights of the Military Forces;
- maintaining state control over a private company;
- certain labour law rules;
- some of the changes pertaining to the criminal procedure and the penitentiary system; and
- the transformation of the asylum system.
The joint NGO assessment paper is available here: