Measures against covid-19: a return to the rule of law?
Germany
by Kurt Scherrer
(15 February 2021) For the first time, due to a lawsuit in Thuringia, a German district court has taken a position on the measures against covid-19 that have been adopted so far. At the centre of the proceedings, the Weimar District Court had to assess the legal basis of the measures imposed to combat covid-19 adopted in spring 2020 and thus their legality and proportionality. The judgement was eagerly awaited, as it was the first time that various officially decreed measures and restrictions, up to national directives of the German federal government, were subject to legal scrutiny following a citizen's complaint. It was therefore a matter for the court to assess the extent to which the decisions of the authorities were compatible with the freedoms and rights of citizens constitutionally guaranteed in a liberal and democratic constitutional state. The landmark judgment was published on 11 January 2021 and aroused a great deal of interest among the persons concerned because of its detailed justifications and unusually clear language. Is it any wonder that it has so far had little coverage in the major private and public media?
What is it all about?
On the evening of 24 April 2020, eight people from seven different households took part in a small private birthday party in the backyard of a house in Weimar. These people were reported for violating several requirements of the 3rd Thuringia Ordinance on SARS-CoV-2 Containment Measures by their action (i.e. gathering too many people from too many different households). One of these persons appealed against the alleged administrative infringements and requested a legal assessment. In Germany, the legal situation is as follows: when there are no federal laws or laws issued by the Länder, but only material laws, such as ordinances, all courts have the competence to decide on the constitutionality of these documents, in accordance with the case law of the Federal Constitutional Court.
The claimant was acquitted
So much is clear: the claimant is fully acquitted. The costs of the proceedings and all necessary expenses of the person concerned are borne by the Treasury.
Not compatible with the Constitution
The guiding principle states that the Thuringia Ordinance on SARS-CoV-2 Containment Measures is not compatible with the Constitution and is therefore null and void. Further on, the court states that, as a result, the various Länder ordinances on covid-19 do not meet the legal requirements either. These regulations, which infringe fundamental rights, are not covered by the legal basis of the Infection Protection Act and are therefore clearly unconstitutional. This also applies to the general contact ban, which is discussed here, which constitutes a serious infringement of the general freedom of action, but also of the freedom of assembly, association, religion, profession and art, irrespective of whether or not a person is suspected of being ill or infected, both in private and in public. According to the court, this affects the basis of civil liberties. In addition, the court also establishes the violation of human dignity, guaranteed in the Constitution, and the lack of proportionality of the prescribed measures.
Spring 2020 – no epidemic situation, no overload of the health system
The court's additional explanations and justifications are also clear and all well substantiated. At no time did the situation justify the executive branch adopting special regulations requiring intrusive and well-targeted measures. The epidemic has never threatened Germany as a whole, although the Bundestag found that it did on 28 March 2020. Even at the time of the first lockdown the healthcare system was not overloaded with covid-19 patients, so there was no epidemic of national proportions. The horror scenarios that significantly influenced the decision on the lockdown in spring 2020, were based on various manifest misconceptions.
Violation of an obvious taboo in the rule of law
With the ban on contact, the court said, the state violated – even considering good intentions – the foundations of society by imposing a physical distance between citizens ("social distancing"). The general ban on contact even corresponds to the violation of the democratic state under the rule of law, a so far self-evident taboo.
The executive branch bears full responsibility
According to the court, the issuer of the orders – i.e. the executive – is fully responsible for the constitutionality of the orders it issues and cannot delegate this responsibility in whole or in part to committees of experts or advisors.
Lack of government expertise
To assume this responsibility, the government should have acquired more expertise, the court criticized. The fact that the strategy document of the Federal Ministry of the Interior published in March 2020 turned out to be science fiction should have made the federal government reconsider. On the basis of the WHO meta-analysis on the effectiveness of containment measures in influenza epidemics (so-called non-pharmaceutical interventions) published in October 2019, the low effectiveness of all measures or the actual absence of measurable effects in terms of incidence of infection or death could have been predicted for the lockdown ordered as early as 23 March 2020. Several scientific studies have also confirmed the ineffectiveness of containment measures in the context of
covid-19 epidemics in other countries. However, on the basis of the figures obtained from the studies and surveys carried out, it could be concluded with certainty that more deaths occurred as a result of the containment policy; indeed, the number of deaths that can be attributed to containment measures alone far exceeds the number of deaths prevented by containment.
Enormous indirect costs
The court describes the collateral damage and consequential costs caused so far as enormous. Proportionality is certainly not respected, and the formal word "disproportionate" is – according to the judges – simply too “colourless” to describe the dimensions of what has happened.
Dramatic consequences for many areas of life
To sum up and conclude, the court declared the containment policy pursued by the state government of Thuringia since the spring of 2020, in particular the essential aspect of the unconstitutional ban on contact, is on the whole a catastrophic political miscalculation with dramatic consequences for almost all areas of life of the population, for society and for the state.
Sources: https://justiz.de/onlinedienste/rechtsprechung/index.php et https://www.burhoff.de/asp_weitere_
beschluesse/inhalte/6054.htm
(Translation «Swiss Standpoint»)