Office of the commissioner for fundamental rights of hungary

The currently effective law does not contain any requirements regarding the mandatory performance of PCR and antigen tests as the precondition for receiving rehabilitation care and elective interventions. The principle of the rule of law is thus violated by the inappropriate level of regulation and the uncertainties in content, as was established, among others, by Commissioner for Fundamental Rights Dr. Ákos Kozma, related to his inquiry into an individual complaint.

In his petition, a parent turned to the Ombudsman with a complaint that, for the performance of his four-year-old child’s elective surgery, which means that the surgery could be postponed without the risk of causing a lasting deterioration in the child’s health condition, the health care provider had asked for the production of a negative PCR test and a negative antigen test of both the child and the adult accompanying him. The complainant said that they should pay for the fees of the tests, as they do not have immunity certificates.

In case No. AJB-3479/2021, Dr. Ákos Kozma disclosed that the statutory requirements that would form a basis for the criticized practice are missing, the rules that concern the use of health care services were laid down in specific ministerial directives and circular letters of the National Public Health Center (NPHC).

In his report, he emphasized that the measures introduced in Hungary, with a few exceptions, do not make the vaccination against Covid–19 mandatory, i.e. they were taken with a motivational intention. In his opinion, getting vaccinated is the interest of society as a whole, pointing beyond individual interests. However, until the state makes it mandatory to receive vaccinations in a law, the means of convincing, providing information and rewarding may be used. The Commissioner for Fundamental Rights thinks that the effect of the measure in question exceeds the level of positively influencing an individual’s autonomous decision, with a motivational intention.

It was disclosed by the inquiry that in this very case, the test for the complainant’s child should, in principle, be performed by the institution free of charge, even according to the issued directives and circular letters. However, the directions contain no rule whatsoever on when these tests should be performed but it becomes obvious from the wording that the age group from 0 to 16 years of age is not regarded as a group to be tested automatically and mandatorily. It does not turn out from the wording whether negative PCR and antigen tests are necessary for the accompanying adults who stay with the minors as well, and the potential financing questions related to this are not clarified either.

It was pointed out in the report that a rule of behaviour that is universally mandatory on the basis of the Fundamental Law of Hungary may exclusively be established by a law. Stipulating that the tests should be claimed by the service providers is an indirect rule of behaviour, which generates an obligation on the side of the private individuals who wish to use the service as well. The ombudsman concluded that, on the basis of the above, stipulating the requirement of the production of PCR and antigen tests and requiring, in a ministerial directive, that the costs of these be charged to the clients violate the principle of the rule of law.

The Commissioner for Fundamental Rights added that the directives and circular letters basically extend the scope of application of the immunity certificates to the use of some health care services and they distinguish between those with and without immunity certificates. He highlighted that the distinction between participation in leisure time activities and performing elective interventions is to be examined on the basis of a different standard. The Ombudsman thinks that an immunity certificate presumes immunity, this is why it cannot be a medical precondition to individual interventions. It is only possible to exclude Covid–19 infections individually, based on tests performed at the time in question, so these may have to be performed in the case of each patient before the intervention if it is medically justified. Based on the above, it is not justified to make a distinction in requiring and funding the tests with a view to preventing the spread of the epidemic. The Commissioner for Fundamental Rights concluded that the current practice of providing health care services causes an impropriety with regard to the requirement of equal treatment.

Dr. Ákos Kozma requested the Minister of Human Capacities to withdraw all of his directives regarding rehabilitation services and elective interventions, and that NPHC as a management body should take care of withdrawing all the circular letters on this subject.

Please, find the respective report at: AJB-3479/2021.