German District Court declares Corona Ordinance Unconstitutional UK Human Rights Blog - Rosalind English:
25 January 2021 -"In a landmark judgement on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021). In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together....
"This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic... With Germany having a federal legal system, there is no uniform case law yet on this point....
"Part of the rule of law is the requirement that laws be definite. Laws may not simply make blanket decrees and thus encourage overenthusiastic interpretation by the authorities leading to arbitrariness. According to the Infection Protection Act, the 'competent authority shall take the necessary protective measures'. In the normal course of events, this means that infected people or those suspected of infection can be isolated or contaminated premises closed. The Infection Protection Act does not provide for a general ban on contact that also covers healthy persons. However, as has been argued by many administrative courts to date, an overstepping of the regulatory circle of the Infection Protection Act beyond the normal course of events can be justified if it is an 'unprecedented event' that is so new that the legislature could not possibly have made the necessary regulations beforehand.
"The judge did not accept this exception to the rule of law. As early as 2013, the Bundestag prepared a risk analysis of a pandemic caused by a 'virus Modi-SARS' with the cooperation of the Robert Koch Institute, in which a scenario with 7.5 million deaths in Germany in a period of three years was described.... In view of such an event, which was considered at least 'conditionally probable' ... the legislator could therefore have examined the regulations of the Infection Protection Act and adapted them if necessary. This policy failure, as a result of which Germany had run into the epidemic virtually unprepared – without legal precautions to combat it, without stocks of masks, protective clothing and medical equipment, could not now lead to politicians being allowed to close any regulatory gap as they saw fit....
"The judge’s conclusion: there were no 'unjustifiable gaps in protection' that would have justified resorting to general clauses. These measures would have violated human dignity, which is 'inviolably guaranteed' in Article 1, Paragraph 1 of the Basic Law'....
It is one of the fundamental freedoms of people in a free society to be able to determine for themselves with which people (assuming they are willing) and under what circumstances they enter into contact. The free encounter of people with each other for the most diverse purposes is at the same time the elementary basis of society. The state has to refrain from any purposeful regulating and restricting intervention. The question of how many people a citizen invites to his home or with how many people a citizen meets in public space to go for a walk, to do sports, to go shopping or to sit on a park bench is of no fundamental interest to the state....
"In January 2020, hardly anyone in Germany could imagine that the state could forbid them from inviting their parents to their home under threat of a fine, unless they sent the other members of their family out of the house for the time they were there. Hardly anyone could imagine that three friends could be forbidden to sit together on a park bench. Never before has the state thought of resorting to such measures to combat an epidemic. Even in the [2013] risk analysis ... which after all described a scenario with 7.5 million deaths, a general ban on contact (as well as curfews and the extensive shutdown of public life) is not considered. Apart from quarantining contacts of infected persons and isolating infected persons, the only anti-epidemic measures mentioned are school closures, the cancellation of major events and hygiene recommendations (BT-Drs. 17/12051, p. 61f)....
"The district judge meticulously examined studies that show how ineffective the no-contact order is. He weighed the restrictions on freedom against the fact that protection has been neglected in old people’s homes, while the less vulnerable population is no longer allowed on the streets. At the same time, the judge dealt in detail with the collateral damage of the lockdown decisions, which is now becoming increasingly apparent....
Based on what has been said, there can be no doubt that the number of deaths attributable to the lockdown policy measures alone exceeds the number of deaths prevented by the lockdown many times over. For this reason alone, the standards to be assessed here do not satisfy the proportionality requirement. Added to this are the direct and indirect restrictions on freedom, the gigantic financial damage, the immense damage to health and the non-material damage. The word “disproportionate” is too colourless to even hint at the dimensions of what is happening. The lockdown policy pursued by the state government in the spring (and now again), of which the general ban on contact was (and is) an essential component, is a catastrophically wrong political decision with dramatic consequences for almost all areas of people’s lives, for society, for the state and for the countries of the Global South.
"However, this ruling is by no means the end of the story.... Thüringen’s equivalent of the DPP has already appealed the matter to the LandesGericht. Their judgment will definitely be available online, and I will report on that when it comes through."
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