Oldenburg Higher Regional Court decides on “mask refusal” on Norderney and in court
Wearing a mask is now part of everyday life and is also accepted by most people. However, some still feel that wearing a mask is an unjustified or even unconstitutional restriction on their personal freedom. The district court of Aurich and the fine senate of the higher regional court were now dealing with such a case.
The person concerned, who practices as a lawyer, was out on the street in Norderney without a mask in November 2020. He had been approached by the police and had refused to put on a mask. The Aurich district court then sentenced the person concerned to a fine of 100 euros in the main hearing on July 9, 2021.
In the same main hearing before the district court, the lawyer defended himself. There, too, he refused to put on his mask in the courtroom at the request of the judge. In addition to the fine, the court therefore imposed a fine of 150 euros, alternatively three days of imprisonment.
The lawyer did not want to accept either of these and lodged an appeal against the judgment and the decision to impose a fine. The Fines Senate of the Higher Regional Court has now rejected these appeals.
The Higher Regional Court initially found that there were no objections to the constitutionality of the legal basis of the Corona Ordinance (Sections 28, 32 InfSchG). Nor are there any concerns about the constitutionality of Section 3 (2) of the Corona Ordinance of October 30, 2020. The district of Aurich was therefore allowed – based on this regulation – to prescribe the wearing of masks in certain areas of Norderney with a general decree. The person concerned had asserted that this general decree was unlawful. In the opinion of the Senate, however, he could not refer to this in the fine proceedings. He should have complained about the general decree before the administrative court and could not simply ignore it.
The higher regional court also found that the persistent refusal of the person concerned to wear a mask in the courtroom constituted an impropriety that could be punished with a fine. The imposition of a fine against a criminal defense attorney is not permissible. However, the lawyer who defends himself does not have the position of a criminal defense lawyer in his own case. A fine can therefore be imposed on him – as on any suspect – if he behaves improperly.
The decisions of the Higher Regional Court are no longer contestable.
OLG Oldenburg, decisions of January 3rd, 2021, Az. 2 Ss (OWi) 240/21.
Bettina von Teichman and Logische
Higher Regional Court of Oldenburg