Seite 380 [380]
OCR
GÁBOR HALMAI obligation to protect Schengen borders against ‘masses entering uncontrollably and illegitimately’ in the EU.” Besides infringing the rights of the NGOs, the decision deprives all asylum seekers of the protection of all fundamental rights by stating that ‘the fundamental rights protection ... clearly does not cover the persons arrived in the territory of Hungary through any country where he or she had not been persecuted or directly threatened with persecution. Therefore, the requirements set forth by Article I Paragraph (3) of the Fundamental Law regarding the restriction of fundamental rights shall not be applied to the regulation of the above listed cases’.”> With this the Court denies the core of human dignity: the right to have rights. ILLIBERAL TREATMENT OF THE PANDEMIC No one reasonably disputes that emergency situations, caused by a huge number of migrants or the coronavirus pandemic require special legal and constitutional measures even in fool-fledged liberal democratic systems. These measures have to take into account various aspects, among them economic and health considerations, which can lead to different balancing outcome between certain legitimate public interest, like security, public order and public health, and fundamental rights, such as right to human dignity, right to life, freedom of movement, right to education, freedom of information and expression, privacy, etc. Even decisions of democratic legislators and governments potentially reviewed by independent judicial bodies can lead either to ’under-’ or ‘overreaction’ to migrantion or the pandemic. But certain illiberal regimes used the crisis situation as a pretext to strengthen the autocratic character of their systems. In some cases this needed an ’underreach”®, like in Poland to insist on the presidential election, which was important to entrench the power of the governing party’s incumbent, despite the health risks.’ Elsewhere on ’overreach’ has served the same purpose, like in Hungary, where an unlimited emergency power of the government has been introduced after the very first cases of contagion.”® 24 Hungarian Constitutional Court Judgement of 25 February 2019, Decision 3/2019 (III. 7.) AB, para. 43. 25 Ibid., para. 49. ?° Seetheterm used by Jonathan Gould — David Pozen, How to Force the White House to Keep Us Safe in a Pandemic, Slate (6 April 2020), https://slate.com/news-and-politics/2020/04/ nancy-pelosi-white-house-covid-19-supplies.html. 27 Jacub Jaraczewski, An Emergency by Any Other Name? Measueres Against the COVID-19 Pandemic in Poland, Verfassungsblog (24 April 2020), https://verfassungsblog.de/anemergency-by-any-other-name-measures-against-the-covid-19-pandemic-in-poland/. Gábor Halmai - Kim Lane Scheppele, Don’t Be Fooled by Autocrats! Why Hungary’s 28 + 378 *
