Inner city of Hanover during the exit restrictions (in April)
Photo: Moritz Frankenberg / dpa
It is the crux of the jurisprudence, especially that of the Constitutional Court, that politics in the pandemic intervene very deeply in fundamental rights at very short notice - and that therefore the courts also have to react very quickly, namely with so-called urgent decisions.
Such urgent decisions have the disadvantage that, even in the best case, they only allow a rough legal examination.
Often the matter has been settled by the time it comes to the actual legal review.
This is also the case with the decision from Karlsruhe that has now been published on the nocturnal exit restrictions within the framework of the nationwide “emergency brake”, as it stands in the “Fourth Law for the Protection of the Population in an Epidemic Situation of National Impact” at the end of April.
The plaintiffs have good arguments.
The Federal Constitutional Court was only able to examine your criticism under two aspects: Are your complaints "inadmissible from the outset or obviously unfounded"?
The court here denied that.
Or are the complaints "obviously well founded"?
This was also rejected by the judges of the First Senate of the Federal Constitutional Court, chaired by its President Stephan Harbarth.
The outcome of the proceedings in the so-called main issue was "open".
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The exit restriction serves the legitimate purpose of "protecting life and health and ensuring the functionality of the health system".
The expectation that private gatherings will be reduced by the exit restriction is also "not obviously implausible".
It is "scientifically controversial" whether the night exit restriction is suitable to reduce infections.
The legislature did not regulate this "in the dark", but could rely on scientific research.
Other, equally effective means are "not obvious".
Consequential consideration to the detriment of the plaintiff
In their lawsuit, the FDP members of the Bundestag submitted that the seven-day incidence of 100 new infections per 100,000 inhabitants for districts and cities did not say anything about whether it was a cluster or a general spread of the virus.
Unfortunately, the judges do not deal with this argument in their decision.
In what is known as the weighing of consequences, the judges decide which is worse: If the urgent decision works for the plaintiff, but the later main decision against it?
Or the other way around?
According to the Senate, this balancing act "is at the expense of the complainant".
The nocturnal exit restriction intervened "deeply in the living conditions", the "inexecutable exercise of freedom" could not be "made up" and the measures led to "increased physical and psychological stress".
However, according to the current legal situation, the measures are "limited to June 30, 2021 at the latest".
The judges want to decide separately about vaccinated and convalescent people
On the other hand, if the exit restriction were to be lifted for the first time, this could "also cause disadvantages of considerable weight". The exit restriction also serves "to control the existing general contact regulations and is intended to promote the willingness to comply with them." Given the high number of new infections, the virus variants rated as dangerous, the serious course of the disease and the deaths, this is of “considerable importance”. If this instrument were not available, "there would be a considerable risk of infection, even if it could not be predicted with certainty in detail".
It would also have been interesting to find something in the decision that the restrictions on freedom are real while the risks are only threatening. From the judges' point of view, "the disadvantages for those affected" do not outweigh the "disadvantages for effective protection against infection if the regulation is suspended" from the perspective of the Federal Constitutional Court. But that would have been exactly what would have been necessary to overturn the curfews.
But today's decision leaves the complainants with hope. Because one aspect, the judges write, has not yet been decided: whether the exit restriction should perhaps be overturned for those who "can be assumed to be immunized", that is, those who have been vaccinated and those who have recovered. This question is "not yet decided" with the present resolution, because "this requires further clarification". The Constitutional Court therefore wants to decide in a separate procedure on the constitutional complaint of a man who has submitted that he has been immunized after surviving COVID-19 disease. Hopefully this will happen quickly.
The Constitutional Court's final decision on the curfews will probably only be made after June 30th, when the exit restrictions have already expired, at least according to the current status.