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Corona bans: Society for Freedom Rights considers them "barely justifiable"

2020-10-29T16:09:05.545Z


The November shutdown will again severely restrict basic rights. Jurist Ulf Buermeyer considers the planned bans to be legal, but "very close to the constitutional limit".


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Closed restaurant in Cologne in March: 75 percent of the infections cannot be traced

Photo: 

Julian Meusel / Eibner-Pressefoto / imago images / Eibner

Innkeepers, hoteliers and theater managers have invested in hygiene concepts and now have to close again.

Grandchildren have foregone visits to their grandparents, newly weds go on a long-distance honeymoon trip, mothers go to the big party for their 70th birthday - but all the efforts have not been enough.

And not all people have tried equally.

In any case, the coronavirus is spreading faster and faster.

In order to break the second wave, the federal and state governments have once again decided to restrict public life across the board.

The new measures apply from Monday and again deeply encroach on fundamental rights.

Chancellor Angela Merkel defended the coming shutdown in many areas in the Bundestag as "suitable, necessary and proportionate".

The CDU politician got the Germans in the mood for a hard winter.

Here you can read which rules apply from Monday.

Bundestag Vice President Wolfgang Kubicki, on the other hand, considers some of the steps to be unlawful and called on innkeepers affected by the renewed ban on accommodation in the "Rheinische Post" to file suit.

After some of the now reintroduced bans had already been overturned by administrative courts, the FDP politician sees the separation of powers being ignored.

So what about the encroachments on fundamental rights decided by the federal and state governments?

Are they still lawful?

In principle, infection protection allows the government to intensively curtail basic rights.

But the more comprehensive they are, the better they have to be justified and in a reasonable relationship to the achievable goal.

"When it comes to saving human lives, as here, severe interventions are also possible," says lawyer Ulf Buermeyer, chairman of the Society for Freedom Rights, in which legal scholars and civil rights activists have organized.

Why aren't private parties more controlled?

But the end alone does not justify the means.

"At the beginning of the pandemic, politicians had a lot of leeway because they didn't yet know what this virus was all about," says Buermeyer.

"Nowadays things are different and there is a lot of information from the health authorities about where people get infected and where they don't."

According to the current state of knowledge, many people get infected in private, for example at large gatherings or celebrations.

But also at work: colleagues in the office or in meat cutting.

Shouldn't the interventions be more precise?

Buermeyer sees it in any case "fundamentally critical" that the measures are not aimed at specific life situations.

"I have a hard time with that."

But are they therefore unconstitutional?

The problem: Researchers know more about the virus and how it spreads.

Due to the high numbers and the many people who have been in contact, the health authorities can no longer trace where the infection has taken place in 75 percent of the cases.

And so, a driving role for the infection process in theaters and fitness studios, for example, cannot be ruled out, despite all hygiene concepts.

In restaurants and cafés, for example, there are contacts outside of work and family.

Without a mask, but often with lots of aerosols in an enclosed space.

In view of this gray area, Buermeyer believes that what is to be enacted is "just about to be justified".

"Because of this 75 percent, politics can think about where people are likely to be infected

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and act accordingly."

The governments could decide on the basis of assessments to close pubs and cinemas, but to keep schools, daycare centers and industrial companies open.

However, they used their leeway, which is based on ignorance, "very close to the constitutional limit".

Interferences with fundamental rights bought with compensation

With the now announced closings of hotels, restaurants and cultural institutions, measures are to be introduced across Germany that administrative courts had overturned in many places in recent weeks.

The paradox: Because the restrictions now affect even more areas, bans that had been stopped in individual cases could now be legally permissible.

Because the argument of unequal treatment towards others, for which there must be an objective reason in individual cases, should from now on weigh less, as Buermeyer says.

In contrast to the already notorious ban on lodging, it no longer only affects hoteliers.

Politicians are planning generous compensation - perhaps also to prevent lawsuits.

Probably only a few landlords or nail salon operators achieved up to 75 percent of their previous year's sales in the past few months, but this sum should now be balanced.

The encroachment on basic rights such as freedom of occupation and property is bought with tax money - or at least, as lawyer Buermeyer puts it, "largely mitigated".

The courts will soon decide how proportionate the corona bans are.

"There is much to suggest that the numerous disputes on the occasion of the corona crisis will continue to occupy the courts, especially in urgent legal protection," said Sven Rebehn, Federal Managing Director of the German Association of Judges.

How much the corona crisis has postponed the debate on fundamental rights is shown by a demand from Karl Lauterbach, who suggested checks in private homes.

In fact, the protection against infection also includes interventions in the inviolability of the home.

But when Merkel brought controllable rules for private rooms up for discussion, it became controversial with the prime minister at the summit, according to SPIEGEL information.

"Angela, leave it alone, that leads to misery," replied Volker Bouffier.

Afterwards, the head of the state of Hessen said that he was reluctant to carry out police checks.

You can read more about the processes at the summit here.

"From today's perspective, I would rate it as constitutionally inadmissible," says Buermeyer, "as long as the corona bans are not yet effectively controlled in the other areas."

First of all, the rules that do not interfere with basic rights should be enforced with fines and penalties.

The only question is whether there are enough federal police officers that Interior Minister Horst Seehofer now wants to use in Corona hotspots - and how exactly they should actually proceed.

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Source: spiegel

All life articles on 2020-10-29

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