Covid-19 Movement restrictions: German courts

30 March 2020 by Rosalind English

Thanks to David Anderson (@bricksilk) for his latest post about the validity or otherwise of the The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and whether they are within the scope of the powers conferred upon the Government by statute. Anderson calls for reports on legal developments across Europe in response to the pandemic. He has provided links to interesting rulings in Germany, specifically Bavaria which has some of the most restrictive curfews. Here’s my attempt at a translation/paraphrase of the press reports of two of these decisions.

In a nationwide comparison, the Bavarian regulations are particularly strict compared to the other Laender [see the table above]. However, there is now public resistance to the Bavarian movement restrictions . On 24 March the Administrative Court in Munich confirmed the effectiveness of the Bavarian movement restrictions that were provisionally suspended in two individual cases. However, the validity of the restrictions remains untouched, according to the court.

The court ruled that the Bavarian state government should amend their rules after the introduction of initial restrictions in the Corona crisis after successful challenges were made by two citizens. However the initial restrictions remain valid nationwide.

Prime Minister Markus Söder (Christian Social Union) said after a cabinet meeting in Munich on Tuesday, that following this ruling the legal basis of these movement restrictions would be changed immediately, although until such changes come into force, he stressed that the initial restrictions still apply.

Leaving one’s own home has been prohibited everywhere in Bavaria with only limited exceptions. These exceptions include travelling to work and necessary shopping, urgent visits to the doctor, sports and walks in the fresh air – but only alone or with the people with whom you share a home.

The chamber of the Administrative Court responsible for health law has temporarily suspended the effect of the initial restrictions in favour of two
individuals “for formal reasons” (decision of 24.03.2020, Az. 26 S 20.1252 and M 26 S 20.1255). The substantive legality of the curfews was not called into question in the court. In its statement of grounds, the court merely doubted whether it was permissible for the Free State of Bavaria to have made these initial restrictions by way of general (administrative) decree rather than by statutory instrument.

The court’s decisions only had an effect in relation to the two applicants.
Restrictions remain valid for all other people in Bavaria, and therefore nothing would change, the court emphasised.

However, as Anderson has pointed out, three days later, on 27th March the Bavarian Constitutional Court rejected a challenge to the movement restrictions brought on constitutional / human rights grounds. In this case, the challenge was to the validity (under the German Basic Law, the equivalent of the ECHR) of the Bavarian Ordinance on a Provisional Initial Restriction occasioned by the corona pandemic of 24 March 2020 (GVBl S. 178, BayMBl No. 130). In this prelimary ruling the Bavarian Constitutional Court concluded that health and life prevailed over other fundamental rights. (VerfGH Ent. v. 26.03.20 Az. Vf. 6-VII-20).

The President of the Bavarian Constitutional Court, Peter Küspert, sat as a single judge, given the urgency of the case. He acknowledged that the numerous direct and indirect restrictions could be seen to clash in an irreversible fashion with far-reaching fundamental rights, should the action (actio popularis) in the main proceedings meet with success.

However, there were reasons for not repealing the contested regulations because of the paramount importance of the life and health of vulnerable members of the public, according to Küspert. The regulations were intended to prevent the contagion of a large number of people. Such contagion would lead to overburdening of the health system, which would
lead to a widespread consequent death toll.

The Court relied on the risk assessment of the Robert Koch-Institute, which currently estimates the risk of danger as as uniquely high.

The plaintiff argued for annulment of the regulations. He claimed that the initial restrictions constituted a disproportionate interference with civil liberties of the citizens. He sought a declaration that the regulation was unconstitutional and [thererfore] void. He also claimed suspension of the ordinance by way of a temporary restraining order.

As explained above, the president of the Court dismissed the application.

Again, I am grateful to David Anderson for alerting us to the article Corona and Triage: Doctors should not be burdened with legal questions. The author Prof. Dr. Dr. Eric Hilgendorf holds the chair for criminal law, criminal procedure law, legal theory, information law and legal informatics at the University of Würzburg. One of his main areas of work is medical criminal law. Here is a link to my attempt at a mixture of translation and paraphrase:

Corona and Triage: Doctors should not be burdened with legal questions