Weimar Court: Germany’s Lockdown Restrictions Are Unconstitutional
A ruling just published by the Weimar District Court has found that the Government’s social distancing rules are incompatible with the country’s constitution. Moreover, through forensic analysis of official [SIC], the ruling asserts that the epidemic situation used to justify the law no longer exists.
The case concerned a birthday party with too many guests. 2020news has the story – and we must thank Northumbrian Nomad for the prompt and accurate translation he or she let in the comments yesterday.
A district judge in Weimar has acquitted a man ordered to pay a fine for breaching the Covid contact ban by celebrating his birthday with at least seven other participants from a total of eight households – six guests too many, according to the Thuringia Covid regulation. The judge’s verdict is damning: the Covid regulation is in breach of the constitution and can be appealed against in material law.
This is the first time a judge has engaged intensively with the medical facts, economic consequences and effects of specific policies.
Part of the Rechtstaat Principle, the principle of the state acting in accordance with the rule of law, is the imperative of precision in legislation. Laws cannot simply impose across-the-board regulations, thereby affording authorities licence to act according to whim, which would amount to arbitrary rule. According to the Federal Infection Protection Act (IPA), the “relevant authorities” are to impose “the requisite safety measures”. In normal times, this means that spreaders or persons suspected of spreading an infection may be isolated or contaminated areas closed off.
The IPA does not envisage a general ban on contact also extending to healthy people. However – and this is the interpretation made by many administrative courts so far – it may be permissible to go beyond the purview of the IPA in the case of an “unprecedented event” that was so new that the legislator would have been unable to pass the necessary regulations in advance.
The judge rejects this pretext. As early as 2013, the Bundestag had access to a risk analysis conducted with the participation of the Robert Koch Institute, concerning a pandemic caused by a “SARS-type virus”, which described a scenario of 7.5 million dead in Germany over a period of three years, and discussed anti-epidemic measures during such a pandemic (Bundestag publication 17/12051). The legislator was therefore able, in regard to such an event that was considered at least “conditionally probable” (occurrence probability class C), to study the provisions of the IPA and if necessary adjust them. This political failure, as a result of which Germany went into the pandemic virtually unprepared – without legal instruments governing control of the virus, without stocks of masks, PPE and medical equipment – cannot now lead to politicians’ simply closing a gap in legislation as they see fit.
Particularly given that an epidemic situation, i.e., the basis for the expansion of the routine infection protection provisions, simply does not exist (or no longer exists). The numbers of those infected and showing symptoms were already falling in the spring (ER: way back in 2020!). The lockdown thus came late and was generally ineffective.
At no time, therefore, has there been a concrete danger of the health service’s being overwhelmed by a ‘wave’ of COVID-19 patients. As can be seen from the DIVI ICU register newly established on March 17th, 2020, an average of at least 40% ICU beds in Germany were free at all times. In Thuringia, 378 beds were registered occupied on April 3rd, 36 of these with COVID-19 patients. Meanwhile there were 417 beds vacant. On April 16th, two days before the issuance of the regulation, 501 beds were registered occupied, 56 with COVID-19 patients, and 528 beds were vacant… Thuringia registered its highest number of notified COVID-19 patients in spring at 63 (on April 28th). Thus, at no time did the number of COVID-19 patients reach a level that could have justified fears of the healthcare system’s being overwhelmed.
This estimate of the actual dangers from COVID-19 in the spring of 2020 is confirmed by an evaluation of settlement data from 421 clinics belonging to Initiative Qualitätsmedizin, which found that the number of SARI cases (severe acute respiratory infection) treated as in-patients in Germany in the first half of 2020 was 187,174 – lower than the figure for the first half of 2019 (221,841 cases), even though this figure included those SARI cases caused by COVID. The same analysis showed the numbers of ICU and respirator cases lower in the first half of 2020 than in 2019…
The judgement is powerful:
The judge concluded that there were no “unacceptable gaps in protection” that could have justified recourse to across-the-board regulations. These measures therefore “violate human dignity guaranteed inviolable” in Article 1, Paragraph 1 of the Federal Constitution. This is a devastating accusation against the Federal Government. It is striking how coldly the Weimar judge concluded this months-long discussion:
“A general ban on contacts is a severe intervention in civic rights. It is among the fundamental liberties of the individual in a free society to determine for himself or herself with whom (on presumption of consent) and under what circumstances he or she will make contact. Free encounter among people for all imaginable purposes is also a fundamental basis for society. The obligation of the state here is categorically to refrain from all intervention that purposefully regulates and limits this. Questions of how many people a citizen may invite to his home or how many people a citizen may meet in a public place to go for a walk, play sports, shop or sit on a park bench are categorically of no legitimate interest to the state.”
In imposing a general ban on contact, the state – albeit with good intentions – attacks the foundations of society by imposing physical distance between citizens (‘social distancing’). No one, even in January 2020, could have imagined, in Germany, being prevented by the state on pain of a fine from inviting their parents to their own home without banishing other family members from the house for the time they were there. No one could have imagined being forbidden to sit with three friends on a park bench. Never before in Germany has the state come up with the idea of imposing such measures to counter an epidemic. Even the risk analysis ‘Pandemic caused by SARS-type virus’ (Bundestag publication 17/12051), which described a scenario of 7.5 million dead, does not consider a general ban on contacts (or bans on leaving the home or the general suspension of public life). Apart from the quarantining and segregation of infected individuals, the only anti-epidemic measures it discusses are school closures, the cancellation of mass events and the issue of hygiene recommendations (BT 17/12051, p. 61f).”
Much of the public has now almost come to terms with the new normal. However, as the judge points out, the life that was previously considered ‘normal’ has now been reinterpreted as a crime.
“Although it appears that a shift in values has taken place over the months of the Covid crisis, with the consequence that many people find procedures that were formerly considered absolutely exceptional more or less ‘normal’ – which of course also alters perspectives on the constitution – there should be no doubt that by imposing a general ban on contacts, the democratic Rechtsstaat has broken what was previously seen as a self-evident taboo.
“It must also be noted – as an aspect worthy of special consideration – that the state, in imposing its general ban on contacts with the aim of protection against infection, treats every citizen as a potential threat to the health of third parties. If every citizen is seen as a threat from which others must be protected, that citizen is also robbed of the possibility of deciding what risks to take – which is a fundamental freedom. A citizen’s choice of visiting a cafe or a bar in the evening and running the risk of a respiratory infection for the sake of social interaction and pleasure in life, or of exercising caution because she has a weakened immune system and therefore prefers to stay at home, is removed under the provisions of a general ban on contacts.”
The report goes on to detail the judge’s consideration of the collateral damage of lockdown:
The judge also considers the collateral damage of the lockdown rulings, which is now becoming ever more massively apparent.
1. Profit setbacks, losses incurred by businesses, traders and freelance professionals as direct consequences of the restrictions imposed on their liberties;
2. Profit setbacks, losses incurred by businesses, traders and freelance professionals as indirect consequences of lockdown measures (e.g. losses to suppliers of directly-affected businesses; losses resulting from the breakdown of supply chains leading, for example, to production stops; losses resulting from travel restrictions);
3. Wage and salary losses from curtailed hours or unemployment
4. Bankruptcies and destruction of livelihood
5. Consequential costs of bankruptcies and destruction of livelihood
The text of the original verdict is available here.
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