THE RULES ON ADDITIONAL PRIVILEGES ATTACHED TO THE IMMUNITY CARD DO NOT INFRINGE THE PRINCIPLE OF NON-DISCRIMINATION

2 November 2021

The Constitutional Court rejected the motions to establish a conflict with the Fundamental Law and annul certain provisions 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. The provisions challenged by a large number of petitioners gave immunity certificate holders additional rights compared to those who did not have them.

Following the launch of the coronavirus vaccination programme, those who have recovered from COVID-19 or have received the COVID-19 vaccine are eligible for an immunity certificate. Under a government decree, persons holding a protection certificate are exempted from certain restrictive measures.

Nearly a thousand petitioners have lodged a constitutional complaint with the Constitutional Court against the exemption provisions. Given that the texts of the motions were identical or substantially identical, the Constitutional Court carried out the constitutionality review in a single procedure and published this information on its website. In the petitioners’ view, the contested provisions of the regulation discriminated against those who did not have a protection certificate on the basis of a decision taken because of health risks, thereby causing them serious fundamental rights violations.

The Constitutional Court ruled that the exercise of certain fundamental rights may be suspended or restricted beyond the limits laid down in the Fundamental Law in times of emergency. On this basis, the Constitutional Court accepted as a legitimate objective of the restriction of rights the fight against the coronavirus epidemic, including the reduction of its health, social and economic impact and the mitigation of damages. The legislator has also fulfilled its obligation under the Fundamental Law to regularly review the need to maintain restrictive measures in the light of changes in the epidemiological situation underlying the state of danger. The Constitutional Court, in its analysis of discrimination, found that those who have a certificate of immunity because they have been vaccinated or have been infected do not form a homogeneous group with those who do not have this condition. Therefore, the challenged regulations are not against the prohibition of discrimination.

On the basis of the petitions, the Constitutional Court also examined the regulation with regard to whether the challenged provisions violate the right of self-determination (and its form applicable to the legal relations connected to healthcare: the right of self-determination in healthcare). The decision found that since the government decree did not make vaccination compulsory, and the petitioners had not claimed that it was, there was no substantive connection between the contested regulation and the right to human dignity, including the right to self-determination.

Based on the above, the panel of the Constitutional Court rejected the petitions.

The decision of the Constitutional Court applies to all constitutional complaints in the case. However, in view of the identical text and the large number of these motions, the Constitutional Court does not inform all the petitioners of the decision by separate postal letters, nor does it send them the decision. The decision of the Constitutional Court is published in the Hungarian Gazette and is accessible and downloadable by anyone on the website of the Constitutional Court.