Visit the family on Christmas Eve and drive home after 9 p.m. - since Wednesday there has been a 500 euro fine.
Can Markus Söder take so much freedom from us?
Yes and no.
An expert explains.
From Wednesday (December 16), there will be a curfew in Bavaria from 9 p.m. to 5 a.m. to curb the infection rate.
We are clarifying with a law professor at the LMU how legal this cut in fundamental rights is and who actually decides at the end of the day when, in the event of a violation, 500 euros per person must really be paid.
You can always read all the latest news about Corona in Bavaria in our news
ticker.
Munich
- It is the biggest cut in fundamental rights since the beginning of the Corona crisis: the curfew in Bavaria from 9 p.m.
Especially on Christmas Eve it means a deep cut in the reality of life in all Bavarians.
Of course: The corona infection numbers have gotten out of control in the Free State, in many regions the intensive care beds in the hospitals are becoming scarce.
But does that justify such a blatant cut in our personal freedoms covered by the Basic Law?
And do you ever face a 500 euro fine?
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A corona police check enforces the curfew (symbol image).
When do Söders face a € 500 fine?
© dpa / photo combo
Corona lockdown in Bavaria: Is the curfew legal - the court shuts down urgent application from Munich
The
Bavarian Administrative
Court gives the quick answer
.
There a
Munich resident
filed an
urgent application
against the
curfew
because it
violated
his
basic personal rights
and was not proportionate, among other things, because he was no longer allowed to go to his second home after 9 p.m. and had to forego his night jogging.
The court rejected the urgent application.
The cuts in freedom are "necessary to contain the corona pandemic" because the previous lockdown light did not work.
The proportionality of the measure is also given.
Corona lockdown in Bavaria: proportionality is the magic word
Proportionality.
We have come
across
this word
regularly
since the first restrictions on
pandemic containment
.
And maybe it's finally time, after we've all become amateur virologists, to deal a little with constitutional law.
Any encroachment on fundamental rights must be proportionate
Lawyer Martin Burgi, professor at the law faculty of the Ludwig Maximilians University in Munich
“Any encroachment on fundamental rights must be proportionate,” says lawyer Martin Burgi, professor at the law faculty of the Ludwig Maximilians University in Munich.
And by the way, this is the case with all prohibitions.
Example: Someone could argue that it is my right to get in the car after four beers.
Many others would say: Our right not to be run dead outweighs this.
Proportionality of the corona lockdown - which fundamental right is more important?
It is no different with the coronavirus *.
Even if it is more exciting to consider.
Personal freedoms are restricted so that the health or the protection of life and limb of each individual is preserved.
No court would agree that the ban on driving while drunk is disproportionate.
Now the night curfew is already a blatant interference with general freedom.
However, we like to make a
serious mistake
in public discussion
.
Corona curfew in Bavaria: Not only the regulation, but also the implementation must be proportionate
Professor Burgi: "It is important
to differentiate
between the
ordinance
on the one hand and the
enforcement
on the other." Both must be proportionate.
And this is where it gets exciting:
the policeman who stops the parents in their car on the way home from their children shortly after 9 p.m. on Christmas Eve has to act just as proportionately as the state government when it was curfew.
Burgi: "The state always owes us this proportionality in the interaction of regulation and enforcement."
The state always owes us this proportionality in the interplay between regulation and enforcement.
Martin Burgi, lawyer
The Bavarian corona curfew, like all restrictions since the outbreak of the pandemic, is
regulated
in the paper with the illustrious name of the
Infection
Protection Ordinance.
That spring had three sides.
There are now 30 paragraphs - and the trend is increasing.
“Anyone who writes this is not to be envied,”
the law professor points out.
Because the author of this regulation must on the one hand already cover a certain proportionality in the text, on the other hand the regulation must still be reasonably understandable for the citizens.
Not an easy task.
The simpler the regulation is written, the more responsibility rests with the enforcement authority in order to establish that proportionality.
Corona curfew: At the end of the day, the police officer decides when there is a risk of fines
Which brings us back to
that policeman
who is on
duty on a nameless main road in Bavaria
on
Christmas Eve
and sees the car with the elderly couple rolling towards them around 9:30 p.m.
By the way, what the officer must or may do now is
regulated
by the recently reissued
Police Task
Act.
This also gives him a certain amount of help with the questions that are now going through his head.
Does he even wave the car out?
If so, it would be proportionate in that case to leave it at a warning.
If he actually fined the two of them 500 euros each, that would of course be covered by the regulation.
On the other hand, the couple would have a good chance of filing a lawsuit against the decision.
Because the magistrate would find it difficult to recognize proportionality in the case.
The ten celebrations who cycle home around midnight after a Christmas party, on the other hand, have fewer chances in court.
Presumed.
Corona curfew: who is being checked?
What are the penalties?
Proportionality.
It is also questionable for Christmas Eve: Does his superior even send the policeman to that street to wave cars out.
After all, what is the risk of infection from that couple in their car?
Our policeman is more likely to control the city center, search for groups of people, and monitor public transport.
And there react proportionally depending on the situation.
And when all officials in the Free State and later the district judges and public prosecutors act like that policeman on that nameless federal highway on Christmas Eve.
Then yes, the curfew from 9 p.m. to curb the infection rate is proportionate and legal.
* Merkur.de is part of the nationwide Ippen-Digital editors network.
