What decision is the Federal Constitutional Court pending with regard to the federal emergency brake?
The emergency brake is a federal law of April 2021. It says: Wherever the corona incidence is over 100 for three days in a row, a whole list of measures automatically takes effect. Curfews and contact blocks come into force without any further order, without any further statutory ordinance, without any further administrative act. It is the law itself that immediately puts these measures into effect. That means: fundamental rights restrictions at the push of a button by the Robert Koch Institute.
This was and is also of fatal importance because there is no classic legal protection: You cannot complain against the restrictions on fundamental rights triggered by the law, at least not before the administrative courts. The legal recourse guarantee is nullified in this way. All that remains is the constitutional complaint in Karlsruhe. Anyone who wanted to defend themselves against being locked up in their apartment at night had to go to the Federal Constitutional Court. That is why there are now hundreds of constitutional complaints pending in Karlsruhe. Half a year ago the Federal Constitutional Court refused to issue provisional decisions, i.e. urgent decisions against the law. It referred to the thorough examination of things in the main proceedings. That decision is now pending.
What is the meaning of the judgment?
It will be a key decision, the big decision on Corona that has been waiting for 19 months. The emergency brake was temporary and is currently no longer active. However, it can be reactivated at any time. Therefore, the highest court must now finally say something substantial. The Federal Constitutional Court has so far been more or less silent about the lockdowns, all profound restrictions on freedom and existential uncertainties.
The highest court must draw guidelines for the constitutional action of the state in uncertain times – guidelines that secure freedom and provide orientation. That is his job, that is his duty. The court now has an overview of 19 months of fighting the corona. It has to hear the divergent voices on the constitutional questions raised and discuss them intensively – publicly, which unfortunately has not yet been planned.
The court must allow the public to participate in a large hearing; it must show the fervor, the seriousness and the sensitivity with which it approaches the question of guaranteeing legal recourse and the difficult balance between the protection of life on the one hand and the rights of freedom on the other.
What decision can be expected?
I am hoping for a decision that will live up to these expectations. I hope for a decision in which the serious struggle becomes noticeable – and which therefore meets with broad acceptance among the population. I hope for a decision that prepares this acceptance well, for example in a detailed oral hearing. I hope for a decision that lives up to the great tradition of the Constitutional Court. This court developed the fundamental rights. It would be bad if it closed again.
In an interview with us you said that 2021 would be the “year of lawyers”. Why do you still notice little about it?
The wheels of justice grind slowly. I hope for the great legal reappraisal of the Corona period, the legal evaluation of the shutdown including the decision on compensation payments for the destruction of existence in the years 2022 ff. – especially from the higher administrative courts.
How would you describe the relationship between the executive and the judiciary in Germany?
The executive sometimes sees the judiciary as a troublemaker – who interferes in their actions. And sometimes it just acts on it and then leaves the legal review and correction to the judiciary. However: the executive is also bound by the law, statute and constitution. The basic principle is called separation of powers, not division of labor.
Where is the line between a normal exchange between politics and the judiciary, and where does the bias begin?
An exchange of thoughts and experiences between the two is important, correct and completely normal. However, it is abnormal and unpleasant if the impression could arise that a judicial decision to be made is discussed in advance. That must not be. It can trigger the “anxiety” of bias; The judge does not have to be really biased, it is enough to have the impression, the assumption that it could be so. In the relevant provisions of the Constitutional Court Act, the standards for impartiality are formulated in a particularly demanding manner, because proceedings before the Constitutional Court are of particular importance. The practice of the highest court often does not meet this requirement: there has probably become a common view that a constitutional judge is never biased per se – unless he considers himself biased. But that is also very seldom the case. This speaks of a certain hubris of the highest judiciary. It is the little hubris of the great judges.
Long miller
To person
Heribert Prantl, Born in 1953 in Nittenau / Upper Palatinate, is a trained lawyer and journalist, has worked as a judge and public prosecutor and has worked for the Süddeutsche Zeitung for many years. He has written numerous books that have received multiple awards. His latest book was published on October 18th.
Heribert Prantl: Heaven, Hell, Purgatory. A political scouting. Verlag Langen Müller, Munich 2021. 498 pages, 24 euros
Is politics overwhelming the legal system?
The legal system needs a sufficient number of judges and public prosecutors who turn the “system” into a functioning organism that can produce well-founded decisions within a reasonable amount of time. Unfortunately, the judiciary is poorly equipped in terms of staff and factual resources, and it is almost a miracle that it works the way it does.
How do you rate the trust of the population in the functioning of the rule of law?
It’s still reasonably good. So far that was also and above all due to the Federal Constitutional Court – the way to Karlsruhe is in the eyes of many people a kind of legal way of St. James. Very few constitutional complaints are successful. But those who succeeded shaped the court’s reputation. “Then I’ll go to Karlsruhe” – the word has become at least as popular as the old sentence “There are still judges in Berlin”. This reputation, this trust must not be jeopardized by a superficial Corona decision without an oral hearing.
Are we facing a fundamental restructuring of the legal system with regard to fundamental rights?
Outwardly, nothing is being remodeled. Fundamental rights are not expressly changed, as was once the case to enable eavesdropping or to ward off refugees – at that time it was the fundamental right to the inviolability of the home and the fundamental right of asylum. But freedoms are in danger of losing their rank, being emptied and devalued. They threaten that in dangerous situations like now in the pandemic only the shell will remain and the contents will suffer.
The liberties are not larifari: life is formed from them. It’s not just about whether you can go to the Baltic Sea on the weekend. It is all about freedom of movement, freedom of action, freedom of trade, freedom of occupation, freedom of religion; it’s about the freedom to meet and gather. These are freedoms that constitute democracy. These fundamental rights do not have to automatically jump aside when the RKI gives a press conference.
The disproportionate nature of the encroachments on freedom, which shattered fundamental rights, became particularly evident in the nightly curfews and in the bans on contact. I expect clear words from the Constitutional Court: This court is there to clearly define the limits for the restrictions on the freedom of citizens.
Is a global shift to be expected, also in the sense that international institutions and decisions are increasingly influencing national legislation?
Such an influence does not have to be harm, on the contrary. There is also the International of Law. There are human rights conventions, there is the EU Charter of Fundamental Rights, there is the European Court of Human Rights in Strasbourg, there is the European Court of Justice in Luxembourg, there is the International Criminal Court in The Hague. These are wonderful, hopefully assertive institutions. It becomes problematic when forces and powers act that believe that they are outside the law and that are beyond legal control.
How do you see the situation in the EU, for example against the background of developments in Poland?
It is fermenting in Europe. It is uncertain whether it will be wine or vinegar. Nationalist forces make a front against Europe; they stand up against the values of the Enlightenment, against the respect for minorities, they stand up against the rule of law, liberalism and tolerance. They are also making a front against a Europe of open borders, so they are looking for salvation again where the European disaster once began. It’s fatal, it’s dangerous. Because despite all the deficits, despite all the shortcomings: This Europe is the best that the Germans, the French and Italians, the Poles, Czechs and Hungarians, the Greeks, the Baltic, Basques and Bavaria, the Berliners and Saxons etc., etc. happened in its long history.
Europe was built out of conquered hereditary enmities, it is the realization of so many old peace agreements that did not bring peace after all. This Europe is a world-historical peace project – but unfortunately more and more Europeans no longer see it as an achievement, but as a matter of course, sometimes as a self-service shop. But the obvious cannot be taken for granted.
If Poland and Hungary disregard European law, if they continue disregarding the common legal principles, the business basis for their EU membership is lost. The people in Hungary and Poland have the European spirit within them, they are born Europeans. I therefore hope that they will take the mallets out of the hands of their ruling politicians with which these politicians are hitting the anti-European drum.
What is the significance of the separation of powers, what is the significance of the independence of the courts?
This Europe is a community of law. The validity of European law in all member states is the common bond, yes, the foundation of the European Union. One of the core principles of law, and thus one of the core principles of Europe, is the principle of the separation of powers, which requires independent courts. That demands: the courts, first and foremost the constitutional courts, must be independent of the government. In Poland and Hungary this independence has been abolished by the government. The Polish Supreme Court is a servant of the Mateusz Morawiecki government; Morawiecki and his PiS party disenfranchised the court and turned it into a bailiff for the executive. The EU cannot and must not tolerate this. It’s not just about rivalries – for example between the EU Court of Justice and the Polish Constitutional Court. It is about the existence of the EU as a community of values and rights.
The interview was conducted by Michael Maier.
More on the subject: Karlsruhe must end legal chaos!
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