The Hungarian Constitutional Court has ruled that the country’s vaccine passport — called a “certificate of immunity” — is non-discriminatory. Which doesn’t make any sense — if the vax pass really is non-discriminatory, it’s a totally useless document.
But of course it’s discriminatory: it distinguishes between those who have been “vaccinated” and those who haven’t, and confers special rights and privileges on the former group while disadvantaging the latter. That’s the exact definition of discrimination.
The real issue is whether or not the vax pass violates the Hungarian Constitution. I don’t understand Hungarian, so I can’t comment on that aspect of the case. I’ll have to defer to the Constitutional Court on the issue.
Many thanks to László for translating this article from the Hungarian news portal Index.hu.
Is the immunity card discriminatory? The Constitutional Court has ruled
In a decision published on Tuesday, the Constitutional Court unanimously rejected the constitutional complaints challenging the constitutionality of the government decree regulating the immunity card. According to the petitioners, the regulation causes a lasting and serious violation of fundamental rights for those who do not have an immunity card. However, the constitutional judges held that the provisions at issue did not infringe the prohibition of discrimination.
In recent months, almost a thousand constitutional complaints have been lodged with the Constitutional Court, asking for the annulment of certain provisions of Decree No 484/2020 (XI. 10.) on the second phase of protection measures to be applied in times of emergency, relating to the protection card.
According to previous information from the Constitutional Court, the vast majority of the constitutional complaints had the same wording and the cases were divided into several groups on this basis. The five-member chamber, chaired by Miklós Juhász and composed of Ágnes Czine, Attila Horváth, Imre Juhász and Tamás Sulyok, President of the Constitutional Court, grouped the petitions with similar or identical content under case number IV/1093/2021.
As previously reported, the petitioners challenged before the Constitutional Court the provisions of Government Decree No 484/2020 which grant additional rights to holders of the official certificate of immunity (the “Certificate of Immunity”) provided for in Government Decree No 60/2021 (12.2.21) on the certificate of immunity against the coronavirus, compared with persons who do not hold such a certificate.
In the applicants’ view, the contested provisions of the Decree discriminated against those who, on the basis of their decisions taken on the basis of health risks, did not hold an immunity certificate, thereby causing serious violations of their fundamental rights.
According to the applicants, the discrimination was not based on necessary, proportionate and reasonable constitutional grounds, in particular the fact that an immunity certificate issued prior to the establishment of immunity under the vaccination protocol does not guarantee the effective establishment of immunity even for those who can prove their immunity under the Government Decree.
The decision of the five-member panel of the Constitutional Court, whose rapporteur was Miklós Juhász, held that the exercise of certain fundamental rights may be suspended or restricted beyond the limits set by the Fundamental Law in times of emergency.
On this basis, the panel accepted the legitimate aim of the restriction of rights as being to combat the coronavirus epidemic, including the reduction of its health, social and economic effects and the mitigation of damage. The legislator has also fulfilled its obligation under the Constitution to regularly review the need to maintain restrictive measures in the light of changes in the epidemiological situation underlying the emergency.
The Constitutional Court, in its analysis of discrimination, held 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 that condition. Therefore, the provisions at issue do not infringe the prohibition of discrimination.
In similar cases, the Constitutional Court has also pointed out that a broader analysis than that from a scientific standpoint may be necessary to resolve constitutional problems relating to scientific knowledge.
In the context of the extended analysis, the Constitutional Court has taken into account the “prevailing scientific worldview” at the time, drawing for example on relevant WHO documents. Thus, when considering the constitutionality of e-cigarettes, they also refrained from taking a position on scientific issues. At the same time, the decision recalls, it cannot be questioned in the constitutional court proceedings that vaccines (including age-related vaccines) serve to increase the human body’s resistance to infectious diseases and to prevent the spread of infectious diseases.
Concerning the question of whether the contested provisions violate the right to self-determination in health matters, the decision held that since vaccination was not made compulsory by the government decree, nor was it claimed by the petitioners, there is no substantive link between the contested legislation and the right to human dignity, including the right to self-determination.
The decision of the Constitutional Court applies to all constitutional complaints in the case.
However, in view of the identity of wording and the large number of petitions, the decision will not be communicated to all petitioners individually by postal letter, nor will the decision be sent to them.