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21/2020 of the General Assembly of the Budapest City Council on certain measures necessary to control the spread of the new type of coronavirus. (IV. 23.) also contains several constitutionally objectionable provisions regarding face covering.
Lawyer András Schiffer, a former Member of Parliament, had the following to say about the issue of our unconstitutionality when contacted by the Index:
Strictly speaking, you are right: the current government decree “hits” the municipal decree in some respects. The Curia decides on this, that is, on the conflict of the local government decree with the law, on the conflict of norms, on the unconstitutionality of the decree.
The emergency declared on March 11, 2020 was lifted by the government with effect from June 18. With the end of the emergency, the government ordered the introduction of epidemiological preparation and declared a health crisis situation, a period of epidemiological preparation, the implementation of which was possible thanks to the Health Law. The current health crisis is not part of the special legal systems enshrined in the Basic Law.
Both the government and the local government can legislate on the provisions of the decrees, in their original powers and other legislative derivatives derived from the Basic Law. As of September 21, new legislation, 431/2020. (IX. 18.) (hereinafter: Government Decree) regulates certain protection measures for the epidemiological preparation period.
Hierarchy of sources of law
The local government decree is located at the lowest level of the hierarchy of legal sources established in the Basic Law, and acts within the competence of the local government to establish local social relations not regulated by law or on the basis of legal authorization. .
It follows from the foregoing that the Government Decree, as legislation on the basic rules of community coexistence applicable in the current situation of health crisis, cannot be in conflict with the municipal decree, but may contain stricter provisions, additional regulations new issues not regulated by the government decree.
The Municipal Decree of the Capital has been modified three times since its issuance (April 23, 2020): May 15, June 17 and September 15. The latter was adopted by the General Assembly in its own jurisdiction once the emergency ended, while the two previous amending decrees were adopted by the Mayor in the jurisdiction of the General Assembly during the emergency, under the special authority of the Government Law. Local.
András Schiffer emphasized in relation to the case that
The municipal decree was issued in such a way that the government decree was not yet in force, but since its entry into force the one that annuls the lower-level legislation has prevailed. The Legislative Capital would do better to adapt to this, or simply repeal its own decree due to a government decree. In Hungarian, originally the Capital did not make a mistake, but based on the legal authorization, the government can make a decree on the given life relationship, it has, from now on the local government decree can only be applied in insofar as it does not conflict with the government decree.
The essential differences
The municipal decree establishes the following in relation to the use of a mask:
§ 1. (1) To prevent a human epidemic causing a massive disease that endangers the safety of life and property, or to eliminate its consequences in the administrative territory of Budapest […] the mouth and nose of a person over the age of six, particularly with a cloth or paper mask, with a scarf, cloth or any other suitable device to catch the exhaled drops, it must cover it completely and continuously.
In contrast, the current government decree imposes stricter requirements:
§ 1. (1) Everyone is required, except a minor under six years of age […] wear a medical mask, a safety mask or a mask made of tissue or other material (hereinafter together: mask) in such a way that it constantly covers the nose and mouth.
Based on this, the municipal decree has the content contrary to the government decree located at a higher level in the hierarchy of sources of law, since it requires the use of a mask made of certain materials to permanently cover the nose and mouth, excluding a scarf, kerchief or other exhalation drops. The contradiction entails the nullity of this provision of the municipal decree.
In addition, the municipal decree establishes two exception rules in Section 1 (2) and (3) for Section 1 (1) cited above, which may be constitutionally objectionable:
Section 1 (2) Clauses (c) and (d) of paragraph (1) shall not apply to a room or part of a building with a function for which a security regulation prohibits face masking.
§ 1. (3) Subsection (1) shall not apply to a person who is otherwise separated from others by a suitable device to catch the exhaled drops, or a physical obstacle ensures that a distance of at least two meters is maintained of others.
A government decree does not allow such an exception, so if it is not provided for in other legislation superior to the municipal decree, it has the opposite content and is therefore invalid. In addition, Law CXXX of 2010 on Legislation. Pursuant to Section 3 of the Act, repeating the same legislation or unreasonably parallel legislation at a lower regulatory level, or a standard derived from a higher level of legal source, is prohibited.
Not doing it and its consequences.
In the case of a municipal decree, the possible reason for the obvious contradictions is that the municipality issued its decree earlier than if the government had modified the relevant regulations. It has been more than a month since the last capital amendment was enacted and the government decree has been amended several times since then.
Failure to comply with the General Assembly of the Metropolitan Municipality can involve several dangers. In many cases, the board is a model taxpayer for other local governments in the country, so in this context or independently, other local governments may not have local government regulations consistent with higher-level legal sources. In addition, the application of softer epidemiological measures, that is, more permissive rules for the use of masks, increases the health risk of the epidemic.
The Curia may decide on the resolution of the contradictions and the unconstitutionality of the decrees of the local government, but the decree of the local government will be considered valid until the decision is made that establishes the fact of nullity.
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