How can something be unconstitutional

Analyze state and constitutional lawyers : Is the curfew against Corona unconstitutional?

On Wednesday, things will get serious: Then the new Infection Protection Act will first be passed by the Bundestag. One day later, it's the turn of the Federal Council. The law stipulates curfews between 10 p.m. and 5 a.m. when the seven-day incidence of new infections rises above 100.

The problem: The nocturnal exit restriction, as it already exists in Brandenburg in regions with high numbers of infections, according to state and constitutional law experts, violates the Basic Law.

Anna Katharina Mangold is a constitutional lawyer and recognizes several violated fundamental rights in the planned nationwide curfew. The lawyer is not alone in this view. Constitutional lawyer Thorsten Ingo Schmidt from Potsdam agrees and says: "This is a serious encroachment and it is unconstitutional."

However, according to Schmidt, the exit restriction between 10 p.m. and 5 a.m. for a district or a district-free city with a seven-day incidence over 100 interferes with the freedom of the person under Article 2 and the freedom of movement under Article 11 as well as the general freedom of action Article 2, explains the Potsdam scientist.

And that, although there are supposed to be exceptions: Among other things, for visits to the doctor and the care of those in need of care and for "similarly weighty and irrefutable reasons". It should be possible to go for a walk or exercise outside by yourself until midnight.

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Constitutional lawyer Mangold emphasized on Tuesday at an event organized by the Society for Freedom Rights (GFF), on whose behalf she had prepared an expert opinion on the curfew, that the state had to justify interfering with fundamental rights, not citizens for exercising their rights. The GFF is now preparing to go before the Federal Constitutional Court in the event that the measure is passed unchanged.

Brandenburg defends exit restrictions

The Kenya coalition in Brandenburg sees it all a little differently and, on the other hand, defended the instrument. Prime Minister Dietmar Woidke (SPD) spoke of a serious interference with fundamental rights on Saturday. However, this procedure is only carried out "because from our point of view it is important to slow down the dynamics of the infection," he said.

SPD parliamentary group leader Erik Stohn emphasized that it was a matter of restricting mobility and contacts. "According to scientific studies, it is also a suitable measure for this."

The lawyer Schmidt, however, justified his concerns. “It actually boils down to being at home from 10 p.m. to 5 a.m.,” he said. "This can be justified with health protection, only then does the intervention have to be suitable, necessary and appropriate."

The effect, however, is that there will be relocation effects, for example if everyone wanted to go for a walk at 9 p.m. “That can even be counterproductive, that is, there are more contacts during the day. You will meet fewer people outside at midnight than at noon, ”said Schmidt. "I have considerable doubts whether the measure is even suitable."

In his opinion, the exit restriction “misses the target”. The risk of infection does not exist when a lonely stroller is on the way. "The danger is private meetings," said Schmidt. “In my opinion, the exit restriction actually has significant disadvantages and is inappropriate. Here an automatism is imposed from a seven-day incidence of 100, completely independent of the occupancy of the intensive care beds. "

Anna Katharina Mangold sees the exceptions to the curfew as a problem. The instrument is not specific enough. Citizens should know in advance whether they might be breaking the law. Otherwise the police would have the power to make decisions, and it was not foreseeable whether they would recognize individual reasons or instead impose a fine.

Regulation of working life would be more effective

It is a further "highly invasive" regulation of private life, said the professor at the University of Flensburg. In contrast, working life is hardly regulated. Better regulation of working life would, however, be less invasive and, at the same time, probably much more effective.

In her opinion, a curfew would be conceivable for a short time as part of a “highly effective overall concept”, said Mangold. The aim here would have to be to bring the incidence down massively.

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"With the goal of permanent control of the corona pandemic, the actual lockdown would also end after a reasonable amount of time, which is not to be expected with the currently planned yo-yo lockdown," she writes in her report. The current concept only pursues the goal of reducing the incidence below 100 for a few days.

Above all, the GFF criticized the lack of balance in the measures to combat the pandemic. For a year now, the federal and state governments have been imposing massive encroachments on fundamental rights in private life, but hardly any effective measures to protect against infections in the world of work, the association announced.

If the emergency brake is so decided, the GFF will act against it, said its chairman Ulf Buermeyer. The GFF is still in the "process of deciding which resources to exhaust". It is possible that there will also be a two-pronged approach and will be sued both before an administrative court and the Federal Constitutional Court.

Buermeyer emphasized that the GFF was expressly behind the fight against the pandemic. In particular, this protects the fundamental right to life and health. The limits of the constitution would have to be respected.

Constitutional lawyer Thorsten Ingo Schmidt makes another plus point. Den represents that the measures are only effective in individual districts and urban districts. "That is more protective of fundamental rights than nationwide in the whole country."

Critical voices also from Berlin

In Berlin, too, the night curfews continue to be viewed critically. At the Senate meeting on Tuesday there was a discussion about the intended federal regulations, said the Senator for Urban Development and Housing, Sebastian Scheel (left), afterwards. When it comes to curfew, there are still doubts: "We are skeptical whether such a general exit restriction based on an incidence value is legally tenable in the current situation," said Scheel. But the debates were still ongoing. We will see with what result.

The Berlin concerns are currently being brought into the discussion rounds between the federal and state governments, the Senator said. The governing mayor, Michael Müller (SPD) intends to address the issue in the Federal Council as head of the Prime Minister's Conference. "We need clarity now," emphasized Scheel.

German Medical Association welcomes nationwide Infection Protection Act

The President of the German Medical Association (BÄK), Klaus Reinhardt, supports the federal government's project. The goal must be to relieve the intensive care units in the hospitals as quickly as possible and to prevent further deaths, Reinhardt explained on Tuesday in Berlin with a view to the draft law on the Protection against Infection Act.

There is currently a risk that the intensive care units of the hospitals will reach their limit, explained the head of the medical association. This affects not only corona patients, but also patients with other serious illnesses who require intensive treatment and ventilation or whose operations have to be postponed.

Reinhardt was critical of the planned curfew. Outdoor transmissions are very rare; Staying outdoors should therefore not be made difficult without necessity. Whether a curfew is useful and necessary depends largely on whether it can prevent risky indoor gatherings. (AFP, dpa, KNA)

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