German District Court declares Corona Ordinance Unconstitutional

25 January 2021 by Rosalind English

In a landmark judgement on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021)

Kontaktverbot verstößt gegen Menschenwürde (Verdict: Contact ban violates human dignity)

In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together. The judge’s conclusion was that the Corona Ordinance was unconstitutional and materially objectionable.

This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic (thanks to @HowardSteen4 for alerting me to this judgment, and commentary quoted below).

With Germany having a federal legal system, there is no uniform case law yet on this point.

The background to the proceedings in Weimar was a fine of 200 euros imposed on a man from Weimar in April last year. The man had celebrated his birthday together with seven other people in the courtyard of a house at the end of April 2020 and thus violated the contact requirements in force at the time. This only allowed members of two households to be together.

Part of the rule of law is the requirement that laws be definite. Laws may not simply make blanket decrees and thus encourage overenthusiastic interpretation by the authorities leading to arbitrariness. According to the Infection Protection Act, the “competent authority shall take the necessary protective measures”. In the normal course of events, this means that infected people or those suspected of infection can be isolated or contaminated premises closed.

The Infection Protection Act does not provide for a general ban on contact that also covers healthy persons. However, as has been argued by many administrative courts to date, an overstepping of the regulatory circle of the Infection Protection Act beyond the normal course of events can be justified if it is an “unprecedented event” that is so new that the legislature could not possibly have made the necessary regulations beforehand.

The judge did not accept this exception to the rule of law. As early as 2013, the Bundestag prepared a risk analysis of a pandemic caused by a “virus Modi-SARS” with the cooperation of the Robert Koch Institute, in which a scenario with 7.5 million deaths in Germany in a period of three years was described and anti-epidemic measures in such a pandemic were discussed (Bundestagsdrucksache 17/12051). In view of such an event, which was considered at least “conditionally probable” (probability of occurrence class C), the legislator could therefore have examined the regulations of the Infection Protection Act and adapted them if necessary. This policy failure, as a result of which Germany had run into the epidemic virtually unprepared – without legal precautions to combat it, without stocks of masks, protective clothing and medical equipment, could not now lead to politicians being allowed to close any regulatory gap as they saw fit.

This is especially true since an epidemic situation, i.e. the basis for the extension of the proven infection control regulations, does not (no longer) exist. Already in the spring, the numbers of infected and ill persons had fallen, the lockdown had thus come too late and had generally been ineffective.

At no time did a concrete danger of the overloading of the health system by a “wave” of COVID-19 patients occur. As can be seen from the DIVI Intensive Care Register, which was newly established on March 17, 2020, at least 40% of intensive care beds in Germany were vacant throughout March and April. In Thuringia, 378 intensive care beds were reported as occupied on April 3 2020, 36 of which were occupied by COVID- 19 patients. This was compared to 417 free beds. On April 16, two days before the decree was issued, 501 intensive care beds were reported as occupied, 56 of them with COVID-19 patients. This contrasted with 528 free beds [ …]

The maximum number of COVID-19 patients reported in Thuringia in the spring was 63 (April 28), and the number of COVID-19 patients was at no time anywhere near a range which threatened an overload of the health care system.

This assessment of the actual dangers posed by COVID-19 in spring 2020 is confirmed by an analysis of billing data from 421 hospitals by the Quality Medicine Initiative, which concluded that the number of SARI (severe acute respiratory infection) cases treated as inpatients in Germany in the first half of 2020, totaling 187,174 cases, was actually lower than in the first half of 2019 (221,841 cases), although this included COVID-related SARI cases. The number of intensive care and ventilator cases was also lower in the first half of 2020 than in 2019, according to this analysis.

Mortality statistics paint a similar picture. According to a special analysis by the Federal Statistical Office, 484,429 people died in Germany in the first half of 2020, compared with 479,415 in the first half of 2019, 501,391 in 2018, 488,147 in 2017 and 461,055 in 2016. Accordingly, in both 2017 and 2018, there were more deaths in the first half of the year than in 2020.

The fear projections that significantly influenced the lockdown decision in the spring were also based on misconceptions about the lethality of the virus (known as infection fatality rate, or IFR) and about an existing or lack of basic immunity to the virus in the population. According to a meta-study by medical scientist and statistician John Ioannidis, one of the most cited scientists in the world, published in October in a WHO bulletin, the median lethality rate is 0.27%, corrected to 0.23%, which is no higher than in moderate influenza epidemics.

The judge’s conclusion: there were no “unjustifiable gaps in protection” that would have justified resorting to general clauses. These measures would have violated human dignity, which is “inviolably guaranteed” in Article 1, Paragraph 1 of the Basic Law. This is a massive reproach to the federal government. The Weimar judge summarises the protracted discussion thus:

A general ban on contact is a serious encroachment on civil rights. It is one of the fundamental freedoms of people in a free society to be able to determine for themselves with which people (assuming they are willing) and under what circumstances they enter into contact. The free encounter of people with each other for the most diverse purposes is at the same time the elementary basis of society. The state has to refrain from any purposeful regulating and restricting intervention. The question of how many people a citizen invites to his home or with how many people a citizen meets in public space to go for a walk, to do sports, to go shopping or to sit on a park bench is of no fundamental interest to the state.

With the ban on contact, the state is attacking the foundations of society – albeit with good intentions – by enforcing physical distance between citizens (“social distancing”). In January 2020, hardly anyone in Germany could imagine that the state could forbid them from inviting their parents to their home under threat of a fine, unless they sent the other members of their family out of the house for the time they were there. Hardly anyone could imagine that three friends could be forbidden to sit together on a park bench. Never before has the state thought of resorting to such measures to combat an epidemic. Even in the risk analysis “Pandemic caused by virus Modi-SARS” (BT-Drs. 17/12051), which after all described a scenario with 7.5 million deaths, a general ban on contact (as well as curfews and the extensive shutdown of public life) is not considered. Apart from quarantining contacts of infected persons and isolating infected persons, the only anti-epidemic measures mentioned are school closures, the cancellation of major events and hygiene recommendations (BT-Drs. 17/12051, p. 61f).

In the meantime, a large part of the public has almost come to terms with the “New Normal”. However, according to the judge, this now reinterprets what was previously perceived as “normal” as a criminal offence:

Although it seems that in the months of the Corona crisis there has been a shift in values with the consequence that processes previously regarded as absolutely exceptional are now perceived by many people as more or less “normal”, which of course also changes the view of the Basic Law, there should in itself be no doubt, according to what has been said, that with a general ban on contact the democratic constitutional state violates a taboo – hitherto regarded as completely self-evident.

In addition to this, and as an aspect to be considered separately, it should be noted that with the general ban on contact for the purpose of protecting against infection, the state treats every citizen as a potential danger to the health of third parties. If every citizen is regarded as a danger from which others must be protected, he is at the same time deprived of the possibility of deciding what risks he will expose himself to, which is a fundamental freedom. Whether the citizen visits a café or bar in the evening and accepts the risk of infection with a respiratory virus for the sake of socializing and enjoying life, or whether she is more cautious because she has a weakened immune system and therefore prefers to stay at home, is no longer up to her to decide when a general ban on contact applies.

The district judge meticulously examined studies that show how ineffective the no-contact order is. He weighed the restrictions on freedom against the fact that protection has been neglected in old people’s homes, while the less vulnerable population is no longer allowed on the streets.

At the same time, the judge dealt in detail with the collateral damage of the lockdown decisions, which is now becoming increasingly apparent:

(1) loss of profits/profits of businesses/tradesmen/freelancers, which are direct consequences of the restrictions on liberty addressed to them

(2) Profit losses/losses of businesses/artisans/freelancers that are indirect consequences of the lockdown measures (e.g., profit losses of suppliers of directly affected businesses; profit losses resulting from supply chain disruptions that resulted in, e.g., lost production; profit losses resulting from travel restrictions)

(3) Wage and salary losses resulting from short-time work or unemployment.

(4) Bankruptcies/destruction of livelihoods

(5) Consequential costs of bankruptcies/destructions of livelihoods.

The data basis for the analysis comes from a report by Prof. Murswiek. This expert argued in the summer of 2020 that the March lockdown was only constitutional in parts. In addition, prohibitions on the general assembly are incompatible with the Basic Law. Above all, the federal government had reached a decision without a comprehensible factual basis and had not presented a cost-benefit analysis.

The judge commented on the devastating consequences of the Corona policy:

Most of these damages will be fairly identifiable. They are certainly gigantic in the aggregate. One gets an idea of their magnitude when one considers the sums that the state injects into the economic cycle as Corona aid. For example, the “Corona shield” agreed by the German government comprises 353.3 billion euros in grants and an additional 819.7 billion euros in guarantees, i.e. a total of over 1 trillion euros. As the German government says, this is the biggest aid package in Germany’s history. Added to this is aid from the federal states. Since the state aid largely comprises loans or loan guarantees, they are not necessarily matched by correspondingly high losses in the private sector. On the other hand, the private losses will in any case be much greater than the state compensation or aid paid as lost subsidies.

Never before in the history of the Federal Republic of Germany have economic losses of this magnitude been caused by a government decision. As far as the assessment of the damage to the private sector and private households is concerned, it must be taken into account that the losses have been or will be compensated in part by state benefits. The government benefits thus reduce the economic damage suffered by private economic agents. However, they do not reduce the overall economic damage, because they burden public budgets and thus ultimately the taxpayers. These costs must not be allowed to fall by the wayside when calculating the disadvantages of the lockdown.

The judge noted the following further consequences of the lockdown:

the increase in domestic violence against children and women

Increase in depression as a result of social isolation anxiety, psychosis/anxiety disorders as a result of Covid-19

Anxiety and other mental disorders/nervous overload due to family/personal/occupational problems as a result of the lockdown

Increase in suicides, for example, as a result of unemployment or bankruptcy

health impairments as a result of lack of exercise

Failure to undergo surgery and inpatient treatment because hospital beds were reserved for Covid-19 patients. Failure to undergo surgery, inpatient treatment, doctor visits because patients feared infection with Covid-19.

In another paragraph the judge also mentions the damage caused in many southern countries that are economically dependent on Germany:

Based on what has been said, there can be no doubt that the number of deaths attributable to the lockdown policy measures alone exceeds the number of deaths prevented by the lockdown many times over. For this reason alone, the standards to be assessed here do not satisfy the proportionality requirement. Added to this are the direct and indirect restrictions on freedom, the gigantic financial damage, the immense damage to health and the non-material damage. The word “disproportionate” is too colourless to even hint at the dimensions of what is happening. The lockdown policy pursued by the state government in the spring (and now again), of which the general ban on contact was (and is) an essential component, is a catastrophically wrong political decision with dramatic consequences for almost all areas of people’s lives, for society, for the state and for the countries of the Global South.

However, this ruling is by no means the end of the story. A disctrict court in Germany (Amstgericht) is not a court of record in the English sense. The judgment might be published because of its public interest (although I have yet to find a published version of the judgment. Thüringen’s equivalent of the DPP has already appealed the matter to the LandesGericht. Their judgment will definitely be available online, and I will report on that when it comes through.

The Erfurt public prosecutor’s office is taking legal action against the ruling issued by the Weimar district court on these contact restrictions due to the Corona pandemic. The public prosecutor’s office has filed an application with the district court for permission to appeal on points of law, according to Hannes Grünseisen, spokesman for the authority.

In this way, the public prosecutor’s office wants to achieve that the verdict with the findings on which it is based is set aside and referred to another judge for a new hearing and decision.

As Stefan Enchelmeier, Professor of European Law at Oxford University, has remarked,

If there are conflicting judgments from other Länder in the meantime, the matter could leap-frog to the BGH before long. We shall have to see. If the matter were brought before administrative courts, too, we might even be able to observe the rare and majestic spectacle of the Gemeinsamer Senat der Obersten Gerichtshöfe des Bundes convening in order to arrive at position binding on all German courts of any jurisdiction.

With thanks to Professor Stefan Enchelmeier for providing me the more recent news on the fate of this ruling.