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Decision 23/2021 AB on the general ban of assembly during the period of state of danger
Constitutional complaint aimed at establishing the lack of conformity with the Fundamental Law and annulling Section 4 (1) and Section 5 (1) and (2) of the Government Decree No. 484/2020. (XI. 10.) Korm. on the second phase of protective measures applicable during the period of state of danger (general ban of assembly during the period of state of danger)
The Constitutional Court established as a constitutional requirement that the law-maker may only suspend the exercise of the right of assembly in times of a state of danger for a period of time and within the scope of what is indispensably necessary, and only in such a way that it must examine at reasonable intervals whether the circumstances giving rise to the restriction still justify the suspension of the fundamental right or its restriction exceeding the requirement of proportionality under the Fundamental Law. In the case at issue, the petitioner sought the declaration that certain provisions of the Government Decree on the second phase of protective measures applicable during the period of state of danger were contrary to the Fundamental Law and the annulment of those provisions. According to the contested provisions, it is prohibited to assemble or gather in public ground or public places, or to organise, hold or be present at the place of an event or gathering during the time of the state of danger. In the petitioner’s view, the contested provisions unnecessarily and disproportionately restrict, in fact, empty out the right to assembly, and by excluding the consideration of the circumstances and by laying down the general prohibition in the law, deprive the petitioner of the possibility of effective judicial remedy. In its decision, the Constitutional Court stated that the right to assembly is one of the most important fundamental political rights, which is the cornerstone of any democratic society, but the protection against the coronavirus epidemic, the minimisation of risks as far as possible, is also a prominent, constitutionally justified objective of the state. Although it would be an exaggeration to state that all fundamental rights must be fully respected in order to protect against an epidemic, in the present case, the temporary exclusion of the freedom of assembly, one of the riskiest fundamental rights for the spread of the epidemic, can be considered a necessary restriction. In its decision, the Constitutional Court stressed, however, that the proportionality of the rules is particularly important in terms of the time: the longer the period of suspension of the exercise of a fundamental right, the stronger justification is needed for maintaining the restriction. The complete exclusion of the exercise of a fundamental right cannot be justified on the basis of the danger alone, but it must be decided on a recurring basis whether the circumstances actually justify the suspension of the fundamental right. Therefore, the Constitutional Court, in addition to rejecting the constitutional complaint, attached a constitutional requirement to the challenged legislation, according to which the legislator may suspend the exercise of the right of assembly only for the time and within the scope strictly necessary even in times of a state of danger, and is obliged to examine at reasonable intervals whether the circumstances giving rise to the restriction still justify the suspension of the fundamental right.