Although in consideration of the pandemic, the necessity of imposing the wearing of masks as broadly as possible cannot be disputed on the level of constitutional law, the proportionality thereof can be established precisely by those guarantees that also champion the enforcement of the right to human dignity of certain groups of patients and persons living with disabilities. When taking each and every one of the protective measures, the circumstances of those affected should be assessed with the same respect and consideration – Ombudsman Dr. Ákos Kozma established in his report.
As a complainant turning to the Commissioner for Fundamental Rights pointed out in his petition, due to health-related reasons, he is unable to wear a mask covering both his mouth and nose, and thus, it is impossible for him to comply with the regulation imposing the wearing of masks in an effort to control the COVID-19 pandemic.
The provisions on the protective measures of the epidemiological stand-by period stipulate that a mask must be worn and that it must continuously cover both the mouth and the nose. In the urban areas of settlements with a population exceeding 10,000 inhabitants, the wearing of masks has also been made mandatory in public areas and spaces designated by the respective municipal government (except during sports activities, in parks and in green areas). Since March 2021, everyone must wear a mask in the streets and public areas when leaving a building in the urban areas of settlements.
This, however, poses an insurmountable difficulty for numerous groups of patients and persons living with disabilities. Those patients and persons with disabilities who are affected by this problem, as well as their legal representatives, have found themselves in a very difficult situation because complying with the regulation has meant for them that they basically have not been able to leave their homes.
In the case of persons living with mental or psycho-social disabilities, or autism spectrum disorder, an exemption was introduced in November 2020, but for persons unable to wear a mask for other health-related reasons, the regulation has still not provided a possibility for exemption.
In the course of the inquiry, the Commissioner for Fundamental Rights sought information from the Ministry of Human Capacities, reviewed the correspondence between the National Public Health Centre and the complainant, and he also consulted with the Chair of the Pulmonary Section of the College of Hungarian Health Professionals.
It is an indisputable fact that the wearing of masks is a crucial protective measure which slows down the spread of the pandemic, and making it mandatory is not unique to Hungary. Moreover, for those people who are affected by some kind of underlying disease, the COVID infection may have a more serious outcome. As the report underlines: all possible efforts must be made in order to ensure that people wear a mask when leaving their homes.
However, consideration should also be given to the fact that there are certain patients for whom it is impossible to wear a mask that would continuously cover both the mouth and the nose. Therefore, while it is vital for those affected to make use of all those services and forms of help that can facilitate their staying in their homes, which offers safety to them (and which guarantees their safety even without wearing a mask), there can certainly be situations which necessitate that they do leave their homes.
Pursuant to the above, it is necessary to handle exceptional situations in an equitable and individualized manner – a view also shared by the Chair of the Pulmonary Section of the College of Hungarian Health Professionals.
In his report, the Commissioner for Fundamental Rights emphasized that when making its decisions, the State may not oblige its citizens to do the impossible, either from a physical or a legal point of view. Consequently, he concluded that the current regulation does not contain any guarantee or clear possibility for exemption for persons unable to wear a mask due to health-related reasons, therefore, the decision does not meet the criterion of legal certainty arising from the principle of the rule of law.
The lack of allowing for the possibility of individual exemption and the failure to provide other alternative services in a mandatory and predictable manner may cause such unworthy situations regarding the patients affected that constitute a severe violation of the fundamental right to human dignity.
In light of all of the above, the Ombudsman has asked the Minister of Human Capacities to consider – similarly to the practice of other European countries – creating a statutory possibility to exempt persons incapable of wearing a mask due to health-related reasons based on individual considerations.