The German Supreme Court, or Federal Constitutional Court, to translate its name literally, has approved the anti-Corona measures. At least for the time being.
The measures to fight the pandemic in Germany are not the strictest in Europe. For example, there is no general curfew and a lot of businesses are still open, but there are restrictions in place against leaving the house and meeting in public. Because of its federal system, there are actually 16 different regulations in place, issued by the respective states. This confuses people because they read something online about what is allowed or not, without realizing that the news are from a different state. Well, that’s the problem when people don’t read their local paper and trust the internet instead.
In the German legal system, you can challenge state laws before state courts and/or before federal courts. (I have published FAQs on how to do this before the Federal Constitutional Court.) In this case, someone challenged the Bavarian regulation, specifically the ban on meeting friends, visiting his parents, staging public protests and meeting new people. (Maybe he matched someone on Tinder an didn’t want to lose any time, not realizing that not meeting women was the best way to keep one’s sanity.)
On 9 April 2020, the German Supreme Court denied the petition for an injunction against said ordinance. Usually, cases before the Supreme Court take years, so the petitioner brought a case for interim relief. In such a proceeding, the court doesn’t have the time to look into all the evidence, nor all the legal arguments. Instead, it weighs the consequences of different scenarios. On the one hand, it has to consider the disadvantages to the petitioner if the law in question is upheld, although it will later turn out to be unconstitutional. These disadvantages, i.e. the restrictions on his civil rights, are quite severe, as conceded by the court.
But, on the other hand, there are the disadvantages caused if the court suspended the application of the law in question, yet it would later turn out that the law is constitutional. The consequences of that scenario, which would include more people than just the petitioner going outside and mingling with others, thus greatly increasing the risk already inherent in the pandemic, are much more dramatic than the temporary suspension of some civil rights. The protection of life and health weighs more than the protection of liberty in this case.
In denying the petitioner’s request, the Supreme Court pointed out that the measures are temporary (opening the possibility of a different decision at a later point in time), that they allow for a number of exceptions and that fines can be reduced or waived by the state in special circumstances.
It is important to keep in mind that this decision is merely based on a comparison of the consequences of two different scenarios. This does not provide any guidance on how the Supreme Court will ultimately rule, which it will certainly be asked to do at one point, for example by someone refusing to pay a fine for meeting friends in a park, or maybe claims for state liability due to lost income.
(For my lawyer friends: I think the main question won’t even be about substantive issues, but about formal constitutional law, because most of the anti-Corona measures have been imposed by the executive branch, based on very wide powers granted by the parliaments. It is however long-standing case law by the Federal Constitutional Court that especially in areas that touch upon civil rights, as these measures heavily do, the main decisions need to be made by parliament and only the details can be left to the executive branch. – On the other hand, the German Supreme Court has a tradition of ruling something unconstitutional, but saying that it was OK to apply the law for a time, or even keeping unconstitutional laws in effect until a new law has been enacted within a deadline imposed by the court.)
In a second decision on 10 April 2020, the Supreme Court used the same reasoning to uphold a ban on religious services in places of worship in the state of Hesse. Again, the same arguments would apply in all other states. The case was brought by a Catholic who wanted to attend church on Easter, but the court specifically mentioned that it would – for the moment – rule similarly in case of other religions and other religious holidays. (Passover is happening currently, and Ramadan and Orthodox Easter will happen in the following weeks.)
And then there was that one lawyer, obviously not versed in constitutional law, who petitioned the Supreme Court to declare that the government response to Covid-19 was threatening the existence of the Federal Republic of Germany, democracy and the rule of law and asked that all measures be suspended. Well, the court had to point out that she hadn’t even met the formal requirements of filing a proper constitutional complaint. Since then, she is running amok, screaming of tyranny, proving that some people do indeed crack under the slightest pressure.
In somewhat related news, it’s interesting to note that Germany has not declared a derogation from the European Convention on Human Rights, as several other member states of the Council of Europe have done, referring to Art. 15 of said convention.