The unredacted RKI protocols from the Corona period are developing into an almost inexhaustible source of information. Every day, new details about the relationship between politics and science come to light. It has been known for centuries that truth is not the decisive category in politics. The RKI files show what this can look like in detail. During this time, the judiciary has far too often blindly relied on the statements of the RKI. What do the revelations mean for the judiciary now?
Follow the Science?
“I am a physicist and I listen to science,” said then-Chancellor Angela Merkel in an interview during the Corona crisis in November 2020. A politician who aligns her actions with the concentrated knowledge of humanity – that promised the best possible Corona policy. And the former Chancellor has repeatedly referred to science to justify the toughest Corona measures. As we know today, this was an unscrupulous attempt to mislead the public. In reality, it was exactly the other way around: politicians did not listen to science. They ordered the appropriate “scientific” statements, justifications and model calculations to legitimize their interference with fundamental rights.
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Appearance and reality – The RKI as a source of scientific knowledge
An important building block in this strategy was the Robert Koch Institute (RKI). It had an impeccable public image. The name itself says it all: It is named after Robert Koch, the Nobel Prize winner and co-founder of modern bacteriology, microbiology and epidemiology. It couldn’t be more scientific. This was also reflected in the RKI’s reputation as an independent and incorruptible center for the fight against epidemics of all kinds. Politics used this asset to its advantage during the Corona crisis. At the height of the pandemic, there were regular press conferences by the Minister of Health together with the President of the RKI. They took place – of course – in the RKI lecture hall, the classic place where knowledge is passed on. They were staged like a quasi-reliant proclamation of the unassailable scientific truth.
There was early criticism of the presumptuous scientific claim of corona policy. The core of science is controversial discussion. Because dissenting opinions and suggestions were suppressed, stigmatized and excluded, it was clear early on that corona was not about science, but about politics. Corona policy as science-based policy – that was a major misnomer.
The image that the public had of the RKI was wrong. The RKI has never been independent. It is a federal government agency under the jurisdiction of the Federal Ministry of Health. It is bound by the minister’s instructions. The countless press photos of the joint appearances of Lothar Wiehler, the President of the RKI, and the Health Ministers Spahn and Lauterbach suggested that politics and science were working hand in hand and on an equal footing to overcome the corona crisis. In reality, however, the pictures showed a boss and his subordinate.
Justice and RKI – an unholy alliance
During the Corona crisis, the judiciary entered into an unholy alliance with the RKI. During the crisis, the courts had to repeatedly assess government measures. It was about compulsory vaccinations, masks, 2G regulations, bans on demonstrations. As different as the individual cases were, the core question was always: Is the danger posed by the Corona virus so great that it justifies the measures and the restrictions on fundamental rights? Of course, the courts could not assess how great the risk was themselves. Judges are experts in law, not in virology and epidemiology. That is why they normally call in independent experts who provide the court with the necessary expertise. The courts largely saved themselves this during the Corona period. The information and statements from the RKI were enough for them. The judges uncritically adopted the RKI’s risk assessments. They treated it like an independent expert. What a serious mistake!
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From the leaked RKI files, we now know how often and how drastically the ministry interfered in the RKI’s information policy. Both Spahn and Lauterbach strictly controlled what information the RKI made public. One drastic example among many is the school closures. On March 12, 2020, the RKI experts agreed internally: “The RKI only considers school closures to be sensible in particularly affected areas.” On the same day, the Conference of Minister Presidents decided on nationwide school closures. This clearly shows what role the RKI’s scientific expertise played when it mattered: none.
What does this mean for the countless rulings from this period that were based on the RKI? They are based on incorrect facts at a crucial point. That is why they are legally incorrect. Many Corona rulings are – it has to be said – miscarriages of justice.
The decisions from Karlsruhe
The Constitutional Court in Karlsruhe made the same mistake. This is exemplified by two decisions from November 2021 on the federal emergency brake.
The Federal Constitutional Court is not a court like any other. It does not judge individual cases. Its core business is the impact of laws on society and on the basic rights of citizens. It must analyze social, economic and political facts, connections and interactions. It often has to make well-founded predictions about how dynamic processes will develop. To do this, it needs a broad and high-quality factual basis. In important cases, it meticulously collects important information. And of course, it consults experts who can help clarify the matter.
Whether a judgment is ultimately good or bad depends very much on the factual basis that the court has established. A one-sided, selective selection of experts and facts invalidates the subsequent judgment from the outset. A judgment is only good if it takes into account all relevant facts.
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The decisions on the federal emergency brake were particularly important, not only legally, but also socially and politically. After all, the Merkel government’s Corona policy was under constitutional scrutiny. And here, of all places, the court largely failed. It relied far too one-sidedly on the RKI and its expertise. Of course, it also requested and received statements from critics of the Corona policy. However, there is no intellectual debate in the decisions with the scientific and legal critics of the government’s policy. The opinions that contradicted the mainstream were ultimately ignored by the court. The court repeatedly refers to the RKI without much discussion. This one-sidedness alone fundamentally devalues the decisions. The revelations in the RKI files about the influence of the health ministers on the RKI are a catastrophe for the court. Of all things, the crucial building block of its decisions is fragile. The Karlsruhe decisions are wrong decisions.
Reappraisal is necessary
The conduct of the courts is fatal for the judiciary and the rule of law. Courts only make sense if they are independent. That is why the rule of law guarantees the courts complete independence. But legal independence and freedom alone are of course not enough. Judges must also be personalities who use this freedom. If there are no internally independent judges with backbone and civil courage in the court, the legally guaranteed independence of the court is of no use. Then judges do not make courageous decisions that thwart the aggressive start. Then their judgments are cautious, fearful and characterized by an effort not to offend. That is what we saw in the pandemic. This has seriously damaged the reputation of the judiciary and trust in the rule of law. That is why a ruthless and critical review of the role that the judiciary played in the pandemic is needed. Only if mistakes are clarified and clearly identified can it (perhaps and hopefully) be possible to revive trust in the judiciary and the rule of law.
