German Courts: more questioning of the legality of Coronavirus restrictions

1 June 2021 by Rosalind English

On 28th of April I wrote up a judgment by Weimar District Court Judge Dettmar against masks and social distancing in schools, and his subsequent handling by the police and District Prosecutor. Judge Dettmar’s decision of the 8th of April was overturned last week and the proceedings were discontinued.

The same court had produced a similar judgment ( 6 OWi 583 Js 200030/21) in a “Corona trial” on the 15th of March 2021 published on the 6th of May 2021. This was a ruling from a judge with a different jurisdiction in the same court. Judge Güricke, unlike Judge Dettmar, is not a family judge. Part of his jurisdiction concerns the validity of subordinate legislation, particularly ordinances banning certain behaviour, on pain of a fine or even a prison sentence. All administrative offences that are not traffic offences fall into this jurisdiction; and the Corona fine cases fall into the Special Administrative Offences division of which Judge Güricke is part. This, his latest judgment, examines in great depth what the government actually knew and should have known about the situation prevailing when the government decided on lockdown in March 2020.

It is well worth reading. Despite the fact that the German media has barely picked up on it, it is being commented upon and read in legal circles.

Judge Güricke’s ruling on the constitutional point is final. The public prosecutor’s office have not been able to appeal because the Thuringian Constitutional Court handed down a ruling on 1 March 2021 that all Thuringian Corona decrees, starting with the first one issued in March 2020 until the beginning of June 2020, were unlawful and null and void due to an error in formalities.

Here’s a summary of this earlier ruling, a loose translation assisted by http://www.DeepL.com/Translator:

On the 4th of April, 2020, a citizen of the state of Thuringa in central Germany, was witnessed to be on a garden plot which he rented, together with his partner, her son and his 8-year-old son at around 13:15. The four persons lived in four different households at the time. This gathering violated § 3 para. 1 of the Thuringian Ordinance on Measures Required to Contain the Spread of the Coronavirus SARS-CoV-2A.

However the person concerned, who had been fined for violating this ban was acquitted because the provision was “unconstitutional and null and void”. It was void because

the norm violated the principle of materiality or the parliamentary reservation (V.), violated the guarantee of human dignity from Article 1 (1) of the Basic Law (VI.) and (in the alternative) there was in any case a violation of the principle of proportionality (VII.). With the exception of the violation of the principle of proportionality, these grounds for nullity are of equal rank; the question of proportionality only becomes relevant if a violation of human dignity is denied.

The German Basic Law (“Grundgesetz”) requires that the legal basis of any statutory instrument should be stated when that order is issued. This was not done in this case and therefore the ordinance was null and void.

Where there are unforeseen developments, case law suggests that it may be necessary for overriding reasons of public welfare [my italics] to take short term measures in regulation, and in this way to enable even very intrusive measures, which would normally require special statutory regulation. …[But] it must be made clear that the legislature has no prerogative of assessment in answering the question whether such an exceptional situation exists.

… The courts alone [have the discretion to decide whether the doctrine of materiality has been met, in order to justify] issuing an ordinance. The legislator does not have any discretion in this respect. Moreover, the courts alone have to decide whether the conditions for a temporary dispensation from these requirements have been met. The legislator has a prerogative of assessment only within the framework of the proportionality test.

The ordinance, continued the judge, that gatherings in public and private spaces were only permitted with one other person from outside the household or in the circle of members of one’s own household, applying regardless of whether the person concerned was infected with SARS-CoV-2 and infectious or even only suspected of being infected, constituted an interference with the core area of private life protected by the Basic Law.

Such a regulation, the judge said, subjects a behaviour that is essential to human beings, as social and physical beings – direct contact and personal encounters with other people not mediated by digital or other media – to such a far-reaching prohibition, that the law only permitted an absolute minimum of physical social contact. This “profound encroachment on fundamental rights”, was neither envisaged in the National Pandemic Plan nor in the pandemic plans of the Länder and was never considered as a means of infection protection in Germany until March 2020. It only became a real option after China reacted to the emergence of the SARS-CoV-2 virus in Wuhan with a lockdown of great severity and Italy “imported” this lockdown policy. Thus a prohibition on state action, that was previously considered irrevocable, was violated. The state could only circumvent this prohibition if it could prove that its action was proportionate (Art. 2 para. 1 Gründgesetz or Basic Law), and therefore fundamentally legitimate.

The general prohibition on contact with other people was exceptional since it did not conform with the right to human dignity. The purpose of the prohibition – to prevent an overload of the health system – would only be considered legitimate if it were certain or at least very probable from the state’s perspective, in an evidence-based assessment, that only by using this means would it prevent such an overload. The court was not satisfied that the state had made such an evidence-based assessment that it could legitimately go beyond the established and tested hygiene measures set out in the pre-2020 pandemic plans (isolation of sick people, closure of communal facilities, prohibition of large events, etc.) This also would have included informing the population and calling for voluntary contact reduction, which might have averted a nationwide overload of the health system. This prerequisite was not met in the present case. [my italics].

The judge accepted that forecasts on the course of an epidemic are always associated with great uncertainties, which suggests that rule makers enjoy a wide margin of discretion. However, a general ban on contact, which was also accompanied by further serious intervention such as the closure of shops, restaurants and other facilities, was “such a serious encroachment on fundamental rights that a review of evidence cannot suffice here, but the decision of the legislator must at least be subjected to a review of justifiability”.

The evidence that the court received from the relevant Ministry which purported to justify these measures did not show a concrete threat to the health of the population and to the health system, nor did it show which considerations were made about the effectiveness of individual measures. Nor was the court satisfied whether immediate damage and collateral damage of the measures had been taken into account, or whether the concerns of the individual concerns were weighed in the balance. “This is at least unusual”, said the judge.

Moreover it appeared “doubtful” as to what extent a single specialised ministry would be able to “comprehensively determine the manifold interests affected by the measures of the ordinance, the degree to which they are affected and to properly weigh them against the yardstick of the Basic Law.”

The scientist advising the authorities on risk, President Wieler of the Robert Koch Institute (the public health institute in Germany) stated in a press briefing that “We have an exponential growth. To make that clear: We are at the beginning of an epidemic that will be on its way in our country for many weeks and months to come.” (at 2’11”).

The judge did not accept that this was sufficient justification for the impugned measures.

These statements had no empirical basis. As a scientist and as the president of the higher federal authority, which is decisively appointed to assess epidemic risks (§ 4 IfSG), Wieler could not have said any more than that there was currently a strong increase in positive tests. At the time, for this assessment to be made, at least the total number of tests would have had to be known, which was not yet the case [in March 2020.]

It does not take much speculation to assume that the Chancellor and the Ministers would not have decided on a general contact ban and a lockdown on 22.03.2020, had Wieler taken this into account.

Incidentally, observed the judge, the graph of the onset of the disease, which did not match the dramatic warnings of the RKI president at all, was never presented in the press conferences of the Robert Koch Institute.

In sum, for the period in question (March 2020), when only symptomatic persons could be tested, the figures suggest that there was an overreaction with no legal basis. The judge reflected that

criticism and scepticism were previously considered virtues of enlightened thinking. In the Corona crisis, on the other hand, these terms are used out of context to put critics of the Corona policy of the federal and state government(s) on the sidelines of the national discussion, [labelled] as “Corona critics” or “Corona sceptics”, thus bypassing a proper debate. If “sceptical scientists” is a term that can be used to defame scientists, one may ask what the positive counter term to this is supposed to be. And if factual arguments in a judgement are labelled “allegations of the corona sceptics” in order to be able to settle them in this way without any discussion of the content, this only shows that legal discourse has not been spared the severe damage of the public debate in the corona crisis either(cf. on this Lepsius, Das verfassungsrechtliche Argument hat es schwer

The figures for intensive care units in Thuringia at the time did not bear out the dire warnings. The highest number of COVID-19 patients in intensive care units in spring 2020 in Thuringia on 24 April 2020 was 63. Even in late March 202, intensive care units in Thuringia were “very far from being overcrowded”.

The judge then turned to the The strategy paper “How we get COVID-19 under control” of the Federal Ministry of the Interior, which was written between the 19th and 22nd of March 2020. He quotes the second paragraph, in which “a very questionable claim” was made. It said:

“Most virologists, epidemiologists, medical scientists, economists and political scientists answer the question’ ‘what happens if nothing is done’ with a worst-case scenario of over one million deaths in 2020 – for Germany alone.” It was completely unclear to which statements the paper referred here, such a prognosis had not been published anywhere and it must also seem strange that prognoses by economists and political scientists on the course of the pandemic should be relevant.

…in fact the eight authors, whom the Federal Ministry of the Interior informed in June in response to a request under the Freedom of Information Act, were respectively five economists, one political scientist, one sociologist and one Germanist. None of the authors was an epidemiologist, infectiologist, virologist or medical doctor.

Since general contact bans had not been seriously considered for pandemic control until the beginning of March 2020, the effectiveness of these measures had been hardly researched, so that the legislator, in the judge’s view, was not entitled to fall back on these research results. … The 2019 WHO meta-study “Non-pharmaceutical public health measures for mitigating the risk and impact of epidemic and pandemic influenza” should have been consulted. In any event, it is now known that the Thuringian health system was “very far” from being overloaded. “

The legislator could and must have known all this, if he had exercised the diligence to be expected of him in determining and evaluating the available sources of knowledge. The correctness of model studies must be proven by empirical reality and not the correctness of empirical facts by model studies. Had the legislator undertaken an appropriate and justifiable assessment of the available material (BVerfGE 50, 290, juris, marginal no. 113), it could not have avoided the conclusion that an overload of the health care system was not imminent at the time or in the immediate future. And thus no further measures needed to be taken. The question of whether a general ban on contact would be a suitable, necessary and appropriate means of pursuing the objective stated in the official justification should not have been raised by the legislator in the first place.

Imposing a contact ban to prevent the overloading of the health care system was not a decision that was justifiable and within the scope of the legislator’s margin of discretion, even though the court recognised that the legislator was under “enormous pressure to act”, a pressure that had been built up for weeks by many media, above all the public broadcaster. The legislator must be expected to withstand even high media pressure and not to forego its own critical and reasoned examination of the available sources of knowledge, even in the face of firm statements by experts.

Even the apparent evidence of “images from Bergamo” … and the understandable desire to avoid such images in Germany could not render obsolete this obligation on the legislator. Prudent and rational action should be expected from the legislator, particularly in a crisis situation.

Judge Güricke concluded his detailed judgment with a warning that, as a member of the judiciary, he was obliged to be alert to the “extremely serious encroachments on fundamental rights” in this “dynamic situation”. The courts’ role is to “continuously observe the further development and, if necessary, to take action at short notice by amending or repealing the ordinance.”

the lockdown only served to reduce the risk of dying or becoming very seriously ill from Covid-19 to a relatively small extent. However, this risk, the reduction of which is specifically at stake, is probably no greater for the individual than many other risks in life. Moreover, everyone who feels burdened by the risk has the possibility to reduce the risk even further through their own behaviour – as is the case with other life risks.