Viktor Orbán’s unilateral power grab in Hungary this week marks not only a dramatic shift in the anti-democratic nature of his premiership, it also underscores how national governments around Europe, illiberal or otherwise, are using the COVID-19 crisis as an convenient excuse to row back on the fundamental rights of their citizens.

In an effort to slow the spread of COVID-19, many EU member states have adopted drastic measures – previously unimaginable during peace times – to protect public health .

A state of emergency has already been declared in numerous member states with decrees ordering citizens to stay at home unless absolutely necessary, or risk fines and imprisonment.

Meanwhile, Latvia, Romania and Estonia have activated Article 15 of the European Convention on Human Rights (ECHR), allowing them to deviate from obligations to guarantee certain rights and freedoms under the Convention. Such derogations can really only be activated at times of war or during public emergencies.

However, it is Hungary that has gone the furthest.

It first declared a state of emergency on 11th March, and any further extension would have required parliament’s approval. But the Justice Minister jumped the gun and submitted a draft bill as early as 20th March, urging opposition parties to prolong the emergency measure for as long as the government deems necessary.

The bill was adopted overwhelmingly by the parliament on 30th March, thanks to the ruling Fidesz party’s two-thirds majority, and provoked a firestorm of criticisms from rights campaigners and pro-democracy activists in Hungary and across Europe.

What the new law means is that the Hungarian government – which had long stifled opposition voices and exerted wide-ranging control over the judiciary and media – can now rule by decree until the end of this period of ‘danger’, with the parliament only needing to have be informed of any new decisions by Orbán. 

In short, the Orbán regime has become a de facto dictatorship inside the European Union, with what was left of its checks and balances now swept aside.

Any law in Hungary could now be suspended or overridden as long as this emergency continues. No elections are allowed. Further, the bill also added two new crimes: anyone found to have publicised ‘false’ or ‘distorted’ facts that interfere with the ‘successful protection’ of the public are punishable by up to five years in prison. Also, anyone who interferes with the operation of a quarantine or isolation order could also face a prison sentence of up to five years.

Nowhere in the bill does it specify when this ‘state of danger’ ends. As things stand, it will only run out when the government says so, or until the parliament revokes the authorisation by a two-thirds majority. The latter is unlikely as the aforementioned Fidesz majority makes a mockery of the parliamentary system.

Desperate times may indeed call for desperate measures. But any emergency responses to the COVID-19 outbreak must be proportionate to the pursued objectives, necessary and non-discriminatory. Measures should be temporary and subject to parliamentary scrutiny.

Hungary’s ‘extraordinary measures’ are designed to limit the individual rights and liberties enshrined in constitutions, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights.

The European Commission’s tepid response to one of its member state suspending the rule of law is not only pathetic, it sets an example to other member states that they have the carte blanche to do exactly the same.

Put bluntly, neither Commission president Ursula von der Leyen nor Commissioner for justice Didier Reynders felt compelled to call out Hungary for what it did, why even pretend to be angry at Orbán.

It’s no good for Reynders to regurgitate what EU rules require – Orbán knows what they are. But it is quite unacceptable for the EU to say they will only ‘monitor’ state of emergency laws enacted in all member states.

MEPs have already affirmed that the activation of Article 15 ECHR by certain member states is an extremely worrying development, as it can create a dangerous precedent for the future, and can be used by totalitarian regimes to suppress fundamental rights. The developments in Hungary will only add to those concerns.

Yes, there may be broad public support in Europe for draconian measures to be enacted during the COVID-19 crisis. But it is important to underline that EU citizens are entitled to fundamental rights protection even during an emergency.

Everyone has the right to health. Everyone, without exception, has the right to life-saving interventions and this responsibility lies with the member state government.

Emergency declarations based on the COVID-19 outbreak should never be used as a basis to target particular groups, minorities, or individuals.

Moreover, it should not function as a cover for repressive action under the pretext of protecting health

The scarcity of resources or insurance schemes should never justify discrimination against certain groups of patients, such as people with disabilities, the elderly, minority communities, the internally displaced and those living in extreme poverty, as well as people in detention, the homeless, refugees and other groups.

Likewise, governments need to take measures to protect women, such as ensuring that hotlines and services for all victims of domestic abuse are considered ‘essential services’ and are kept open and law enforcement is sensitised to the need to be responsive to calls from victims.

No arbitrary rights restrictions can be imposed without good reasons, and restrictions cannot be disproportionate to what is needed for halting the spread of the virus. If measures taken during the special legal order fail to comply with these criteria, they are unconstitutional and should be repealed.

Quote: Malin Björk (Vänsterpartiet, Sweden):

“Most of us agree that the drastic measures now being taken around the world are necessary to stop COVID-19. But this must never be used as a pretext for authoritarian leaders like Viktor Orbán to restrict our most fundamental freedoms and rights.

“I have long called for any member state that violates our fundamental rights to be stripped of EU funds. The gradual erosion of the rule of law and democracy by Hungary and Poland will only accelerate at times of crisis. We must therefore remain vigilant wherever democracy and our basic civil liberties are undermined.”