German Court: The Country’s Lockdown Restrictions Are Unconstitutional

Translation from German:

A district judge in Weimar has acquitted a man ordered to pay a fine for breaching the Covid contact ban by celebrating his birthday with at least seven other participants from a total of eight households – six guests too many, according to the Thuringia Covid regulation. The judge’s verdict is damning: the Covid regulation is in breach of the constitution and can be appealed against in material law.

This is the first time a judge has engaged intensively with the medical facts, economic consequences and effects of specific policies.

Part of the Rechtstaat Principle [the principle of the state acting in accordance with the rule of law, NN] is the imperative of precision in legislation. Laws cannot simply impose across-the-board regulations, thereby affording authorities licence to act according to whim, which would amount to arbitrary rule.
According to the Federal Infection Protection Act, the “relevant authorities” are to impose “the requisite safety measures”. In normal times, this means that spreaders or persons suspected of spreading an infection may be isolated or contaminated areas closed off. The IPA does not envisage a general ban on contact also extending to healthy people. However – and this is the interpretation made by many administrative courts so far – it may be permissible to go beyond the purview of the IPA in the case of an “unprecedented event” that was so new that the legislator would have been unable to pass the necessary regulations in advance.

The judge rejects this pretext. As early as 2013, the Bundestag had access to a risk analysis conducted with the participation of the Robert Koch Institute, concerning a pandemic caused by a “SARS-type virus”, which described a scenario of 7.5 million (!) dead in Germany over a period of three years, and discussed anti-epidemic measures during such a pandemic (Bundestag publication 17/12051). The legislator was therefore able, in regard to such an event that was considered at least “conditionally probable” (occurrence probability class C), to study the provisions of the IPA and if necessary adjust them. This political failure, as a result of which Germany went into the pandemic virtually unprepared – without legal instruments governing control of the virus, without stocks of masks, PPE and medical equipment – cannot now lead to politicians’ simply closing a gap in legislation as they see fit. Particularly given that an epidemic situation, i.e. the basis for the expansion of the routine infection protection provisions, simply does not exist (or no longer exists). The numbers of those infected and showing symptoms were already falling in the spring. The lockdown thus came late and was generally ineffective.

At no time, therefore, has there been a concrete danger of the health service‘s being overwhelmed by a „wave“ of COVID-19 patients. As can be seen from the DIVI ICU register newly established on March 17, 2020, an average of at least 40% ICU beds in Germany were free at all times. In Thuringia, 378 beds were registered occupied on April 3, 36 of these with COVID-19 patients. Meanwhile there were 417 (!) beds vacant. On April 16, two days before the issuance of the regulation, 501 beds were registered occupied, 56 with COVID-19 patients, and 528 (!) beds were vacant … The Thuringia registered its highest number of notified COVID-19 patients in spring at 63 (on April 28). Thus, at no time did the number of COVID-19 patients reach a level that could have justified fears of the healthcare system’s being overwhelmed.

This estimate of the actual dangers from COVID-19 in the spring of 2020 is confirmed by an evaluation of settlement data from 421 clinics belonging to Initiative Qualitätsmedizin, which found that the number of SARI cases (severe acute respiratory infection) treated as in-patients in Germany in the first half of 2020 was 187,174 – lower (!) than the figure for the first half of 2019 (221,841 cases), even though this figure included those SARI cases caused by COVID. The same analysis showed the numbers of ICU and respirator cases lower in the first half of 2020 than in 2019.

Mortality statistics show a similar picture. According to a special evaluation by the Federal Office of Statistics, 484,429 people died in Germany in the first half of 2020, compared to 479,415 in the first half of 2019, 501,391 in 2018, 488,147 in 2017 and 461,055 in 2016. 2017 and 2018 thus produced more deaths in the first half of the year than 2020.

The terrifying forecasts that exerted a crucial influence on lockdown in the spring were also based on false assessments of the lethality of the virus (infection fatality rate, IFR) and of existing or absent basic immunity to the virus in the population. According to a metastudy by the medical scientist and statistician John Ioannidis (one of the most-cited scientists in the world) that was published in a WHO bulletin in October, the median IFR is 0.27%, corrected to 0.23 %, and thus no higher than in a moderately severe influenza epidemic.

The judge concluded that there were no “unacceptable gaps in protection” that could have justified recourse to across-the-board regulations. These measures therefore “violate human dignity guaranteed inviolable” in Article 1, Paragraph 1 of the Federal Constitution. This is a devastating accusation against the Federal Government. It is striking how coldly the Weimar judge concluded this months-long discussion:

“A general ban on contacts is a severe intervention in civic rights. It is among the fundamental liberties of the individual in a free society to determine for himself or herself with whom (on presumption of consent) and under what circumstances he or she will make contact. Free encounter among people for all imaginable purposes is also a fundamental basis for society. The obligation of the state here is categorically to refrain from all intervention that purposefully regulates and limits this. Questions of how many people a citizen may invite to his home or how many people a citizen may meet in a public place to go for a walk, play sports, shop or sit on a park bench are categorically of no legitimate interest to the state.”

In imposing a general ban on contact, the state – albeit with good intentions – attacks the foundations of society by imposing physical distance between citizens (‘social distancing’). No one, even in January 2020, could have imagined, in Germany, being prevented by the state on pain of a fine from inviting their parents to their own home without banishing other family members from the house for the time they were there. No one could have imagined being forbidden to sit with three friends on a park bench. Never before in Germany [!!!!!!!!!!!! – NN] has the state come up with the idea of imposing such measures to counter an epidemic. Even the risk analysis ‘Pandemic caused by SARS-type virus’ (Bundestag publication 17/12051), which described a scenario of 7.5 million dead, does not consider a general ban on contacts (or bans on leaving the home or the general suspension of public life). Apart from the quarantining and segregation of infected individuals, the only anti-epidemic measures it discusses are school closures, the cancellation of mass events and the issue of hygiene recommendations (BT 17/12051, p. 61f).”

Much of the public has now almost come to terms with the new normal. However, as the judge points out, the life that was previously considered ‘normal’ has now been reinterpreted as a crime. “Although it appears that a shift in values has taken place over the months of the Covid crisis, with the consequence that many people find procedures that were formerly considered absolutely exceptional more or less ‘normal’ – which of course also alters perspectives on the constitution – there should be no doubt that by imposing a general ban on contacts, the democratic Rechsstaat [state under the rule of law, NN] has broken what was previously seen as a self-evident taboo.

“It must also be noted – as an aspect worthy of special consideration – that the state, in imposing its general ban on contacts with the aim of protection against infection, treats every citizen as a potential threat to the health of third parties. If every citizen is seen as a threat from which others must be protected, that citizen is also robbed of the possibility of deciding what risks to take – which is a fundamental freedom. A citizen’s choice of visiting a cafe or a bar in the evening and running the risk of a respiratory infection for the sake of social interaction and pleasure in life, or of exercising caution because she has a weakened immune system and therefore prefers to stay at home, is removed under the provisions of a general ban on contacts.“

The district judge undertakes meticulous examination of studies showing how ineffective the general ban on contacts is. He weighs the limitations on freedom against the fact that protection has been neglected in care homes, while the less seriously threatened population is no longer allowed into the streets.

The judge also considers the collateral damage of the lockdown rulings, which is now becoming ever more massively apparent.
1. Profit setbacks, losses incurred by businesses, traders and freelance professionals as direct consequences of the restrictions imposed on their liberties;
2. Profit setbacks, losses incurred by businesses, traders and freelance professionals as indirect consequences of lockdown measures (e.g. losses to suppliers of directly-affected businesses; losses resulting from the breakdown of supply chains leading, for example, to production stops; losses resulting from travel restrictions) ;
3. Wage and salary losses from curtailed hours or unemployment
4. Bankruptcies and destruction of livelihood
5. Consequential costs of bankruptcies and destruction of livelihood

The data basis of the analysis comes from an expert opinion by Prof. Murswiek. During the summer, he criticised the March lockdown for having been, in part, inconsistent with the constitution. General bans on assembly he also considered irreconcilable with the Federal Constitution. Above all, though, he accused the federal government of having made decisions without verifiable bodies of facts and of having failed to present a cost-benefit analysis.

Devastating consequences of Covid policies

“Most of this damage can be ascertained in reasonable detail. Seen as a whole, it is certainly gigantic. An idea of the scale of the damage can be obtained by considering the sums of money poured by the state into the economy as Covid aid. The ‘Corona Protective Shield’ ordered by the government, for example, included EUR 353.3 billion in subsidies and a further EUR 819.7 billion in guarantees – over a trillion Euros in total. As the federal government itself said, this is the largest aid package in the history of Germany. The federal states are also receiving aid. Because state aid is mostly in the form of credits or credit guarantees, it does not necessarily equate to high losses to the private economy. But private losses will in any case dwarf state compensation or aid paid as lost subsidies.

“Never before in the history of the Federal Republic of Germany have economic losses of this order been caused by a government decision. As for the estimation of damage to the private economy and private households, it must be borne in mind that some losses have been or will be compensated by the state. So state activity mitigates the economic damage to private economic subjects. But it does not mitigate the overall damage to the national economy, because it puts a burden on the public purse, and thus ultimately on the taxpayer. These costs must not be swept under the carpet in assessing the negative effects of lockdown.”

The judge lists and provides evidence for the following further consequences:

1. The increase in domestic violence against women and children.
2. The increase in depression arising from social isolation, fear psychoses, fear pathologies arising from Covid
3. Anxiety and other psychological disturbances and nervous exhaustion arising from family, personal and professional problems caused by lockdown
4. The increase in suicides, causes including unemployment and insolvency
5. Health impact caused by lack of mobility
6. Cancellation of operations and in-patient treatment because hospital beds are reserved for covid patients
7. Cancellation of operations, in-patient treatments, doctor visits because patients fear catching Covid-19.

The judge’s summing-up packs a punch. In another point, he also refers to the damage being done in many southern countries that are economically dependent on Germany:

“In the light of all this, there can be no doubt that the number of deaths attributable to the measures of lockdown policy will far exceed the number of deaths prevented by lockdown. For this reason alone, the norms I scrutinize today do not meet the requirement of proportionality. Added to this are the direct and indirect limitations on freedom, the gigantic financial damage, the immense damage to health and mentalities. The word ‘disproportionate’ is too pale even to suggest the dimensions of these events. The policy of lockdown, the key component of which is the general ban on contacts, which the state government [of Thuringia] pursued last spring, and again now, is a catastrophic political error with dramatic consequences for virtually all spheres of human life, society, the state and the countries of the global south.”

Source – original

[ 1 ]  –  Source of translation

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