Bán-Forgács NóraEmergency powers are introduced into legal systems under extraodinary circumstances, such as war, climate catastrophe, global pandemic, such as COVID-19, to control the legal system under extraordinary pressure.
Emergency (or extraordinary) power of the state is used for a period of time to prevent damage in the society. Different constitutions regulate emergency powers differently. Usually a feature of extraordinary legal system is the constitutional limitation on fundamental rights, including freedom of information.
I argue that in Hungary the limitation on freedom of information served as a pretext to halt the free access of information.
In Hungary emergency procedures that deviate from the standard legislative process have been in force since 11 March 2020, first justified by the outbreak of the COVID-19 crisis,[1] then continuously prolonged, last time with reference to the Russo-Ukrainian war.[2]
The European Union raised concerns that in Hungary emergency measures should be strictly proportionate, necessary, limited in time, and in line with European and international standards.[3]
The situation of freedom of information is specific because public data on the epidemic - such as the spread of the virus, the hotspots of the outbreak of the virus, or credible information on Government measures to combat the epidemic -, are not simply data of public interest, but are in fact data that are prerequisites for public confidence in the fight against the pandemic.
Credible, verifiable information can strengthen public trust. To underscore just one dimension of my claim: without authentic information, it is hardly possible to increase confidence in vaccination, and the willingness to vaccinate is a key factor, without which it is not possible to successfully combat the pandemic. Willingness to vaccinate will only increase if citizens are aware of the data on how many people have been vaccinated, what vaccine was used, and what was the effect of vaccination.
During emergency powers in Hungary the public authority shall comply with the freedom of information request within 45 days instead of the usual 15 days of statutory requirement. This may be extended once by an additional 45 days. The request for access to data of public interest may not be submitted orally. The restrictive measures shall also apply retroactively to pending FOI requests. Regarding freedom of information and emergency in Hungary, I further focus on three aspect of the problem. 1) First, the lack of regional epidemiological data 2) Second, the unlawful publication of mortality data, and the 3) third problem is the separation of personal and public data in the context of the COVID-19.
1) The lack of regional epidemiological data
Essential epidemiological data were partly not communicated by the Hungarian Government to citizens and data were partly delayed. This caused extreme difficulties in the first wave of the pandemic, in the spring of 2020. Also, the Hungarian Government did not communicate (at all) regional epidemiological data in the first phase of the outbreak. Mr. Gergely Gulyás, minister of the Prime Minister’s Office, stated that regional epidemiological data are not disclosed because ”the Operation Task Force’s position is clear: we must not create panic in any municipality.“
Meanwhile, independent Hungarian news agency, 444.hu carried an analysis in an editorial that all European countries publish regional data on coronavirus patients, except for Hungary. In a press statement, the politically appointed president of the Hungarian National Data Protection Authority (NDPI) was quick to defend the government’s policy of non-disclosure. Mr. President of NDPI stated that the reason for the concealment of the territorial data is that these data can also be “decision-making preparatory” data that are immune from disclosure based on Paragraph 5 of Article 27 of the Hungarian Information Act (Infotv).
In September 2021, Mr. István Ujhelyi, member of the European Parliament (part of the Hungarian opposition) requested data of public interest on how many of the coronavirus patients who were finally hospitalized or died had been previously vaccinated, what vaccine they had received and how many times they had been vaccinated. No reply from the government was received.[4]
The other typical set of cases in the first wave of the virus are data requests related to hospital bed evacuations. Hungarian Ministry of Human Resources (EMMI) did not make public its order on the emptying of hospital beds for future COVID-19 patients.[5] However, the success of the evacuation was largely contested in Hungarian society, since those who forcefully left the hospital, eventually died without hospital care system. The Hungarian Helsinki Committee, a civil rights organisation, submitted a public interest data request to the Ministry on 20 April 2020,[6] asking for the information, however the requested data was not made public until today.
2) The unlawful publication of mortality data
On 25 March 2020, the Hungarian news portal ”Index” published an article entitled. "Steven Dick, British Deputy Ambassador in Budapest, is one of the victims of the crown virus outbreak in Hungary. He is the tenth person to die in Hungary from the coronavirus. The man, aged just 37. The British embassy confirmed the news to Index" [7]
After criticism of lack of information, the Hungarian Government finally started publishing the statistics on infections and deaths in March at https://koronavirus.gov.hu/elhunytak. In addition to the number of people who have died, their age, sex and underlying disease are also listed. For example, the tenth victim on the list was a 37-year-old man with an underlying alcoholism problem. The data were attributed to the British deputy ambassador, and as a result of the disclosure, it became common knowledge that the deputy UK ambassador was suffering in alcoholism. This resulted difficulties in the Hungarian diplomatic relations because sensitive data about a foreign diplomat were being published without their consent.
On 31 March 2020, the Hungarian Civil Liberties Union (TASZ) contested the Hungarian Government’s practice on publishing names and underlying illnesses of coronavirus patients infringing their right to privacy. TASZ also enclosed a rule of procedure, concrete suggestions how to avoid such interference with fundamental rights, however, the Hungarian Government continued to publish the mortality data in the same way.
3) Relying on data protection against freedom of information to retrieve information
The case of Mr. János Áder, President of the Republic well represents the conflict between data protection and freedom of information during COVID-19 in Hungary. In this case the complainant requested the Office of the President of the Republic to release a copy of the President’s vaccination certificate as a public data, claiming that Mr. President had previously announced that he had received Chinese vaccine Sinopharm. Mr. President’s statement was made in a press conference where he personally made the information public. The NDPI in its position (NDPI- 3356-2/2021), stated that the public data in Article 26(2) of Act CXII of 2011 in the Information Act (Infotv.) explicitly refers to "personal data related to the performance of public duties." Therefore, such personal data to reveal shall be directly related to the constitutional duties of the Head of State. Vaccination data however, is not related to the public duties of the President, unless Mr. János Áder, the President of the Republic, 'voluntarily and freely decides otherwise', his vaccination certificate 'may be lawfully refused in the context of a request for data in the public interest. [8]
4. Conclusions
Rapid, effective, and uncontrolled responses are not implausible reactions to internal and external crises such as the war in Ukraine or COVID-19. However, when they appear to serve as a façade that enables the Government to circumvent fundamental rights, democracy are endangered.[9]
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[1] Coronavirus crisis: a ‘mass human pandemic endangering the safety of life and property [...] in order to protect the health and lives of Hungarian citizens’. Government Decree 40/2020. (III. 11.).
[2]Government Decree 180/2022. (V. 24.). See 2023 Rule of Law Report, Country Chapter on the rule of law situation in Hungary; 2022 Rule of Law Report, Country Chapter on the rule of law situation in Hungary; 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary; 2020 Rule of Law Report, Country Chapter on the rule of law situation in Hungary.
[3] Council Recommendation of 20 July 2020 on the 2020 National Reform Programme of Hungary and delivering a Council opinion on the 2020 Convergence Programme of Hungary 2020/C 282/17.
[4]https://nepszava.hu/3132813_miert-titkolja-a-covid-betegek-oltasi-adatait-a-kormany.Also: https://infostart.hu/belfold/2021/09/30/ujhelyi-istvan-pert-indit-a-covid-betegek-oltottsagiadatai-miatt
[5]http://www.ekint.org/az-allam-atlathatosaga-informacioszabadsag/2020-05-12/uvegemberkent-elni-a-nagy-testver-orszagaban-avagy-a-lemeszarolt-informacios-szabadsagok
[6] https://kimittud.atlatszo.hu/request/korhazi_agykapacitas_felszabadit
[7]https://index.hu/belfold/2020/03/25/a_brit_nagykovethelyettes_a_koronavirus_egyik_aldozata_magyarorszagon
[8] NDPI-3356-2/2021
[9]Fruzsina Gárdos-Orosz and Nóra Bán-Forgács, Introduction The (Non)Resilience of the Hungarian Legal System: From Populist Constitutionalism to a Permanent State of Danger. In: Fruzsina Gárdos-Orosz (Ed), The Resilience of the Hungarian Legal System since 2010, A Failed Resilience? Springer, 2024. 13. o.
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The research was carried out under the project "The responsiveness of the legal system in a post-Covid society: risks and opportunities" (05016764); funded by the High-Risk Grant for Research on Post-COVID Phenomena by the Hungarian Academy of Sciences; Host institution: Centre for Social Sciences.
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The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.