In the fight against the corona virus, politicians massively intervened in fundamental rights. While measures such as the mask requirement before the courts existed, others were collected again.
By Christoph Kehlbach and Michael-Matthias Nordhardt, ARD legal editor
Mask requirement, contact restrictions or assembly bans – the list is long and could easily be extended. In the past year the legislators and regulators, so “the politicians”, took many measures because of the coronavirus that have seriously affected the lives of us citizens.
Never before in the history of the Federal Republic has our fundamental rights been encroached on so massively and across the board. The political debate about it became heated, the critics of the measures demonstrated in the streets and the judiciary was confronted with a large number of lawsuits and petitions overnight.
The state may intervene in fundamental rights – under certain conditions
With the Corona measures, the state intervened in our fundamental rights – and continues to do so: For example, contact restrictions and the obligation to wear a mask affect the general freedom of action. Restaurant closings and event bans interfere with the occupational freedom of restaurant operators and artists, and travel restrictions with the right to freedom of movement of tourists.
But not every interference with fundamental rights is unconstitutional per se. On the contrary: encroachments on fundamental rights take place every day without anyone being particularly upset – for example when the state sets rules on how we should behave in traffic.
Such interventions are always permitted if they meet certain requirements: Every state intervention in a fundamental right must serve a legitimate purpose. The interventions must be suitable to achieve this purpose at all, represent the mildest means and ultimately be proportionate in the narrower sense.
Citizens who are themselves affected by government measures can – even in times of Corona – have a court checked whether these criteria are being met. In the past year, such lawsuits and urgent motions relating to Corona were almost the order of the day.
Health protection as a legitimate purpose
With regard to the Corona measures, the legitimate purpose for interventions is quickly found: to protect the health of citizens. The state is obliged to do this by the Basic Law. He must contain significant health threats.
When it comes to the question of how suitable an intervention is, it must be checked: Can the specific measure protect citizens from infection, or does it come to nothing? In addition, the interventions must be “required”. So there cannot be a more lenient means by which the health of citizens is protected just as well. After all, an intervention must also be proportionate in the narrower sense. Here, the courts usually make an overall assessment. It is at this last point that the court often decides whether a particular government action is classified as lawful or unlawful.
In the past year, the courts have often carried out this review and made numerous decisions on various corona measures. Mostly in the so-called urgent procedure, because a “normal” legal process would have taken too long.
Mask requirement reasonable, ban on worship only as an exception
The need to wear a mask, for example for shopping in the supermarket or traveling on buses and trains, was a concern of the judiciary, especially in the first half of the year. In the vast majority of cases, however, the courts saw this as a reasonable restriction. When the schools reopened later in the year, the highest administrative courts in Bavaria and Schleswig-Holstein also confirmed the mask requirement in class. Only in a few exceptional cases were students exempted from the mask requirement.
The increased risk of infection at church services in spring meant that religious events were prohibited to a greater extent by the Corona regulations. The Federal Constitutional Court examined these prohibitions very critically.
Initially, however, the bans largely existed. At the end of April, the Federal Constitutional Court issued a decision calling for a closer look. The authorities should not generally prohibit religious gatherings and should at least check whether exceptions are possible in individual cases.
The Karlsruhe judges made it clear in all decisions that such bans deeply encroach on the fundamental right of freedom of belief. A ban can therefore only be appropriate in extreme exceptional situations. For example, when it comes to preventing the health system from collapsing.
Accommodation bans overturned in rows
After a summer in which the measures were significantly relaxed, the number of infections rose again in autumn – initially only in a few hotspots. The federal states reacted, among other things, by issuing bans on accommodation. Hoteliers and holiday home owners were banned from taking in tourists. Tourist trips and the spread of the virus in Germany should be avoided.
But shortly after the measures were adopted, the courts overturned these bans in a row. The judiciary already had doubts that they were even suitable for slowing down the infection process. Because overnight stays in hotels did not play a prominent role in the spread of the virus. It is incomprehensible why these are banned if there are infections mainly at private meetings or celebrations.
Freedom of demonstration strengthened – conditions allowed
The courts had to deal with assembly bans particularly often in 2020. For example, when critics of the Corona measures such as the “lateral thinking initiative” called for demonstrations, which were then prohibited.
In several decisions, the Federal Constitutional Court underlined the great importance of the fundamental right to freedom of assembly. This is an extremely important good in a democratic constitutional state. Meetings should therefore not be banned across the board. The authorities would always have to check whether they could take place under certain conditions. However, it is quite conceivable to name the mask requirement, distance requirement and participant restrictions as prerequisites if the general public can only be protected from serious health risks in this way.
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