Coronavirus in Hungary: What on Earth is a "state of danger?"

What is a "state of danger?" Isn't it a “state of emergency?”

It is one of the six types of special legal order defined by the Fundamental Law of Hungary (besides the state of national crisis, state of emergency, state of a terrorist threat, state of preventive defence, and unexpected attack). Article 54 of the Fundamental Law of Hungary sets forth that the Government can declare a state of danger "in the event of a natural disaster or industrial accident endangering life and property, or in order to mitigate its consequences." It is usually declared in limited geographical areas affected by natural disasters like during the large floods of 2013, the first time we've had a nationwide state of danger was during the initial wave of the coronavirus this spring. On Tuesday, Viktor Orbán announced it a second time.

(Translator's note: Though “state of emergency” is a widely used term in English to describe similar special legal orders, given the fact that it is also the name of an entirely different legal institution in Hungary, employed when the restoration of constitutional order requires deploying the armed forces, I mostly prefer to use the legally accurate term as it appears in the official English translation of the Fundamental Law instead of the better sounding, but wildly inaccurate alternative.)

What is it for?

Extraordinary situations may call for the Government to take quick steps, and the simplest way to do that is by issuing decrees, which is what this special legal order permits. Government decrees issued during a state of danger may "suspend the application of certain Acts, derogate from the provisions of Acts, and take other extraordinary measures" as regulated by a cardinal act, in this case, the Act on Disaster Relief. By default, these emergency decrees remain in effect for fifteen days, though Parliament may extend that if necessary – the Government is currently in talks with the opposition on their support of a 90-day extension.

So Viktor Orbán can do whatever he wants now?

The Act on Disaster Relief regulates what the Government can and cannot do in this situation, providing an exemplificatory list of what measures they can take (concerning halting traffic, curfews, a ban on demonstrations, deployments, etc), but in essence, the Government has a wide authorisation: The law states they can practically do whatever is required by the coronavirus response effort, as long as it has any practical connection to the pandemic. Even during the first wave, there were many steps taken by the Government that were not explicitly named in the Disaster Relief Act, such as most of the ad-hoc measures taken in March and April like suspending loan payments and ordering schools to switch to remote education.

Well during the first wave, many in the opposition cried dictatorship over the special legal order.

Yes, there was indeed some political turmoil surrounding the first time when the Government used this tool on 11 March, especially after the first draft of the so-called "Coronavirus Act" was published, and conflicting interpretations of the bill were making the rounds. Critics were concerned about the lack of a sunset clause, theoretically making it possible for the Government to maintain the special legal order indefinitely, but that was not entirely accurate. Fidesz requested the Parliament to approve of extending the effect of the emergency decrees beyond their fifteen-day expiration date, until the end of the state of danger. Lifting the state of danger was the Government's call to make to begin with, reiterating the indefinite term of the special legal order in the bill was a moot point from a legal perspective.

But if it was all up to the Government anyway, why did the Parliament vote in the first place?

The declaration of the state of danger in the Coronavirus Act (which was already declared by a government decree earlier) was mostly symbolic; the approval of the legislature simply lent an air of legitimacy to that drastic step. (It's an entirely different question that only MPs of Fidesz and far-right Mi Hazánk voted in favour of the bill, but that just gave Fidesz an opportunity to accuse the opposition of hindering the coronavirus response efforts.)

We do not yet know what the Parliament will vote on this time, as the draft of the extension bill is yet to be published on the National Assembly's website. In his address on Tuesday, Prime Minister Viktor Orbán said that they are "asking the Parliament to extend the special legal order by 90 days." As we explained above, the special legal order's termination is up to the Government, so what the PM probably meant is the extension of the 15-day expiry of the emergency decrees to be issued during the state of danger. This time though, only for 90 days instead of indefinitely.

So the state of danger will end in three months?

Right now, nobody can tell how long it would last – the Fundamental Law allows the Government to maintain the special legal order as long as the reasons for its declaration exist. The emergency decrees will only be effective for three months, which is exactly what critics of the Coronavirus Act wanted to include in the bill in March. But theoretically, the Government could reissue the same decrees without any problem, or they could turn to the Parliament for a further extension if the pandemic still rages three months from now.

Should we be concerned that the Government would not lift the state of danger even after COVID-19 is history?

That is more of a political than a legal question, however, based on what we saw the first time around, it is highly unlikely. The first nationwide state of danger was lifted mid-June (again with the Parliament's – mostly symbolic – approval). Leaving Hungary in a permanent state of danger would not make any sense from a political perspective: such a blatantly anti-democratic step would not sit well with anyone, and with the stable supermajority Fidesz has in the National Assembly, there is really no need for it either.

And how about curbing fundamental freedoms without justification? Is that a concern? Could we see emergency decrees that have nothing to do with COVID-19?

Just like before, in this matter too, we only have historic evidence to go on. There were indeed several strange measures during the first wave, such as taking a packaging material company under state control and sacking its leadership, or the seemingly unjustified military presence at several major companies (although no particular interferences were reported there). Emergency decrees were mostly in response to the pandemic as the Parliament was still operational and Fidesz had a stable supermajority, just like now.

And how about the freedom of expression? I remember the police bothering people about Facebook posts in the spring.

The Government did indeed toughen the criminal sanctions of scaremongering, although not done by decree, but by a simple amendment to the criminal code. They are connected because the new section was adopted at the same time as the Coronavirus Act, and this kind of scaremongering is only punishable if there is a state of danger in effect. The paragraph says:

"Anyone who, under a special legal order, in public, utters or spreads statements known to be false or statements distorting true facts shall be punishable by imprisonment between 1 to 5 years if done in a manner capable of hindering or derailing the effectiveness of the response effort."

How does this affect the operation of hospitals? I hear that the Coronavirus Task Force said the healthcare system is under increasing strain.

The healthcare system had already been in emergency mode even before the declaration of the state of danger: Ever since the previous state of danger ended on 18 June, there had been a so-called "healthcare crisis" in effect. This meant that healthcare workers could be transferred to other institutes on command, including deployments to pandemic hospitals. That remains true even during the state of danger, albeit the legal basis for it is now different.

And how does this relate to the scandal around the healthcare service status? Several doctors are refusing to sign the contract on their new status, so their employment could end within 90 days. Who will treat patients then?

Indeed, many medical workers are opposed to the Government's new regulation on the healthcare service status, entering into effect on 1 January. Despite the considerable increase in their salaries, most medical workers are concerned that under the new law, they would become transferrable by default, could not take second jobs, would get fewer days off, and that the law abolishes collective agreements in healthcare. According to a survey conducted by the Hungarian Chamber of Medicine, 77% of doctors are not willing to sign their new contracts under these conditions, which means that their employment in state-run medical institutions would end by 1 January.

But during a state of danger, that does not matter: Medical workers can still get deployed anywhere, even if they work in private healthcare, or if they are not actively employed anywhere. These people are deployed not by their employer, but by the regional Government Offices if it becomes necessary, as Judit Zeller, a lawyer of the Civil Liberties Union explained to Telex.

So with the declaration of a state of danger, doctors and nurses can no longer resign?

No, that is not the case at all; Their resignations are still governed by the Act on Public Servants and the Labour Code. This is subject to change though because as we mentioned above, the Government has the power to suspend the application of, or derogate certain laws by decree, so, for instance, a moratorium on resignations in the healthcare sector is not out of the question. It's a different matter whether or not that would make any sense, since as we have explained, the deployment of medical professionals has nothing to do with their employment status.

Is there anything to be done if the Government overreaches its emergency authorisation, curbs fundamental freedoms without justification, or does anything unconstitutional?

The application of the Fundamental Law cannot be suspended even under a special legal order, so the Constitutional Court still retains the power to review the Government's emergency decrees. Such a review may be initiated by the Commissioner of Fundamental Rights or by a quarter of the members of Parliament. Besides, though with strict conditions, but anybody affected by suspected unconstitutional regulations may file a constitutional complaint if they deem that it violates their fundamental freedoms.