The Federal Constitutional Court has announced that it will decide in October or November whether the so-called Federal Emergency Brake, i.e. the Fourth Civil Protection Act that came into force on April 23, 2021, is partially illegal. Almost 10,000 people have submitted 281 constitutional complaints and several motions. Some of them are now being decided. In particular, it concerns exit restrictions, contact restrictions, restrictions on leisure facilities, regulations on tourist accommodation, school closings and compulsory testing. The complaints and applications in Karlsruhe are part of a broad wave of lawsuits: According to the German Association of Judges, there were more than 10,000 legal proceedings due to Corona in 2020 alone. According to the ETL lawyer network, there were 660 decisions at the beginning of September.
According to the German Association of Judges, in around nine out of ten urgent proceedings in 2020 and 2021, the courts confirmed the restrictions often imposed on citizens by means of ordinances, because they would have given the health protection of the population more weight than the restrictions for the citizens concerned. However, according to ETL lawyers, the weighting of the decisions has changed: First of all, the courts recognized “freedom-restricting measures of the sovereigns as well as the regulatory measures adopted” as lawful in many cases. With increasing time, however, the court decisions had taken the individual case more into account, which is why numerous urgent applications were then also successful.
The fundamental decision from Karlsruhe is of central importance because most courts are overwhelmed with the current legal situation: laws and ordinances are changed in rapidly changing order. Regulations are detailed, unclear or contradictory. There are large local and regional differences in measures. The evidence is difficult: a criminal court in Bavaria has just ordered the physical examination of a suspect who invoked a doctor-issued mask exemption. Knowledge of the laws and regulations can hardly be expected of the public because the individual regulations are complex and difficult to understand. Recently, a court in North Rhine-Westphalia discussed with the lawyers who brought the action, somewhat at a loss, about the question of whether a meeting of eight people should be considered a “meeting” or an “event”. Depending on the point in time, there were different legal consequences from the point of view of infection protection.
The requirements for applicability are constantly changing. It is unclear for the courts who to consult as experts and which expert opinion should be valued higher: Is the World Health Organization (WHO) expressly mentioned in the “Law for the Prevention and Control of Infectious Diseases in Humans” the measure of all things and must be WHO guidelines be followed even if they contradict national policy? Germany had imposed lockdowns, even though this measure was expressly classified as a non-preferred means in the WHO’s pandemic plans. But what is the status of the WHO for jurisprudence? Which weighs more heavily: a WHO specification or one from the Robert Koch Institute (RKI)? Which has more weight: a virologist’s report from Drosten, Streek or Stöhr? Can a court refer to statements by Karl Lauterbach or is it bound by the requirements of the Ethics Council or the Standing Vaccination Commission? Who trumps whom: “World Medical President” Montgomery the Kassenärzte boss Gassen, and are both trumped by Medical Association President Reinhardt?
Such supposed trifles can be decisive when it comes to the question of right and wrong: An application for bias against the judge Stephan Harbarth was rejected by the Federal Constitutional Court because Karlsruhe found that statements by Harbarth in an FAZ interview were not questionable and that the concrete agenda would be At the meeting of the constitutional judges with Chancellor Angela Merkel, there was no cause for “concern of bias”.
Stephan Harbarth and his colleagues must be expected to prove to be incorruptible and independent judges. The German courts have been waiting for a saying from Karlsruhe for a very, very long time. The population is insecure and frustrated. The Federal Constitutional Court has ducked for too long. The highest independent constitutional body of the judiciary has to hammer in a few stakes so that the days of legal chaos can come to an end.
Karlsruhe must ensure that legislation, enforcement and the judiciary can work and make decisions strictly within the framework of the Basic Law. The task is not easy: In a pandemic, international law also plays a role – for example, the role of the WHO, the involvement of the EU in the procurement of vaccines or in conflicting norms in the intergovernmental area. If Karlsruhe fails in this task, there will be an emergency in the German courtrooms. The task of the Federal Constitutional Court is to end the legal state of emergency in order to permanently secure peaceful and free coexistence in this country.