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Empty classroom in Germering near Munich
Photo: Frank Hoermann / SVEN SIMON / picture alliance
Constitutional Court President Stephan Harbarth announced months ago that a decision would be made on the so-called federal emergency brake, the most drastic package of measures in the corona pandemic to date, by the end of November.
Now, on the last day of the self-imposed deadline, the court published two fundamental Senate decisions: on contact and exit restrictions and school closings.
From the court's point of view, these were apparently the most important points.
The federal emergency brake, a response by the federal government to the hesitant action of the federal states in the third wave of the pandemic, came into force on April 23 and expired at the end of June.
For a long time it had looked as if this would not happen again;
Paragraph 28b of the Infection Protection Act, in which the federal emergency brake was regulated, has since been changed again.
Judges' verdicts for the future
So two decisions only for the past?
Not at all.
The fourth wave is rampant, there is also fear of the Omikron variant, and harsh measures have long been discussed again.
And that's why the judges' rulings also say something important for the future.
They came unanimously and were clear: These measures were constitutional in the spring.
Both resolutions leave little doubt that this would apply again to exit and contact restrictions in comparable hazard situations;
This also applies to the school closings to a slightly limited extent.
For the first time with a detailed justification
In the pandemic, many are placing their hopes in the judges in Karlsruhe: More than 450 proceedings, constitutional complaints or isolated urgent applications have landed at the Federal Constitutional Court against the federal emergency brake alone.
Of these, the Karlsruhe judges decided a total of 21 isolated urgent motions and 180 constitutional complaints.
For the first time, the First Senate made decisions in the main, that is, with a detailed substantive justification, based on nine selected constitutional complaints.
These included applications from the FDP, Free Voters and the “Society for Freedom Rights” as well as from children and their parents.
Other main proceedings against the restrictions on leisure and cultural facilities, retail and catering are still pending.
"For irrefutable purposes"
The contact and exit restrictions were linked to what appears to be a very low seven-day incidence of 100 from today's perspective: They applied if this was exceeded on three consecutive days in a rural district or an urban district.
Private meetings were then only permitted for a maximum of people from two different households - with the exception of deaths.
And staying outside of an apartment between 10 p.m. and 5 a.m. the following day was prohibited.
However, there were numerous exceptions to this, for example for the exercise of a profession, in emergencies or for jogging, as well as "for similarly weighty and unavoidable purposes";
In addition, the federal government issued an ordinance on May 8, 2021 that exempted vaccinated and recovered people from the contact and residence restrictions.
Scope for the legislature
According to the Federal Constitutional Court, these measures interfered "in a considerable way with various basic rights." But in the "extreme danger of the pandemic" the contact and even the even more serious exit restrictions were compatible with the Basic Law, decided the First Senate, chaired by Harbarth. The legislature is entitled to "a margin of maneuver that relates to the assessment and evaluation of the actual circumstances, to any necessary prognosis and to the choice of means".
Overall, the court grants the legislature quite a lot of leeway. From the point of view of the constitutional judges, the nightly exit restrictions were also proportionate "in the specific situation" - above all because they would not have applied without exception. The exit restrictions, so the reasoning, should support the general contact restrictions and other protective measures and "in particular ensure compliance with the contact restrictions in closed rooms".
The legislature was allowed to assume that protective measures such as keeping your distance or wearing masks "can only be enforced to a limited extent in the evening and at night and in private areas of retreat," says the decision penned by constitutional judge Henning Radtke.
The fact that the exit restrictions, which are comparatively easy to control, primarily served to reduce such gatherings, was "not constitutionally objectionable in view of the existing knowledge."
Right to school education recognized
The First Senate also approved the school closings - but made two important restrictions that could be significant for the future. From an incidence of 100, face-to-face teaching at general and vocational schools was only allowed to take place as alternating teaching, from an incidence of 165 it was completely prohibited; the federal states could exempt graduating classes and special schools from the ban and also set up emergency care.
It was unclear whether the children and young people could claim a right to school education vis-à-vis the state.
The Constitutional Court has now recognized this for the first time in the second fundamental decision, pre-formulated by Judge Josef Christ: The state is constitutionally obliged to children and adolescents, it says in a preceding principle, »their development to a self-reliant personality also in the community through school education to support and promote «.
The school closings intervened in this right "in a serious way", but this interference was opposed to "overriding public interest" at the end of April 2021 "due to the dynamic infection process".
Warnings from the judges
However, the judges warn that if the state had previously "failed to take precautions" with which school closings could be reduced or even avoided, then "the interest of those affected in being spared from such avoidable impairments of fundamental rights could be weighed against public interest gain additional weight «- in other words: a school closure would ultimately be disproportionate and therefore unconstitutional.
The court expressly mentions improved ventilation in the classrooms, the use of larger rooms to maintain distances, increased digitalization of school operations or possibly the use of mobile air purifiers. The judges expressly warn: If restrictions on school operations were to be considered again, "their reasonableness should in any case also be measured by whether obvious precautions, in particular further digitization of school operations, have been taken".
In addition, the resolution emphasizes that at that time there were only a small portion of the population on offer for vaccinations.
Conversely, that means that school closings would no longer be so easy to justify with an advanced vaccination rate.
This applies "to an even greater extent" to the closure of primary schools.
Primary school pupils are "particularly badly affected because the successful delivery of education depends on the possibility of direct interaction with the teachers and learning deficits can have a lasting effect on further educational success."
Dinner with the Chancellor
Both resolutions refer to the difficulty of political decision-making under uncertainties in several ways. That was already the subject of the now infamous dinner of the entire constitutional judiciary on June 30th with the Chancellor. For this reason, the Berlin lawyer Niko Härting had initially filed bias petitions against President Harbarth and a judge who had given a lecture on the subject that evening; after these were rejected, Härting also rejected the rest of the Senate as biased.
The First Senate has now also rejected this proposal.
This second request was "completely unsuitable for justifying the concern about bias" and thus "obviously inadmissible".
Nevertheless, the impression remains that the judges made themselves unnecessarily vulnerable through this evening appointment.
And the need to at least have to discuss the bias requests internally before the proceedings can be continued has apparently delayed the decisions by several weeks.
Valuable time when politicians are waiting for a signal from Karlsruhe and have to deal not only with actual, but also legal uncertainties.
In the matter, the judges also issued a warning to politics on this point: “The longer a regulation created using forecast leeway is in force”, although “the legislature could have obtained more well-founded knowledge, the less it can rely on his original, uncertain prognoses «.
In other words: the legislature must be as knowledgeable as possible.
Otherwise he will not only have to make decisions, burdened with uncertainty, but may also no longer be able to make serious, actually necessary encroachments on fundamental rights.
Both would be fatal in the end.