With the increasing incidence, a renewed lockdown comes into focus again. But would that even be constitutional? A lawyer assesses the situation.
Munich – While incidences and infection numbers are setting new records almost every day, the mood in Germany is currently changing. Just a few weeks ago, a new lockdown was clearly rejected by the federal government, which should be prevented under all circumstances, according to the consensus. But renowned virologists such as Christian Drosten from the Berlin Charité recently expressed their concerns. In order to fight the fourth wave, contact-restricting measures are needed again because of the unvaccinated, Drosten told the weekly newspaper The time. There is a lack of alternatives. On the other hand, he could not answer whether this could be held legally.
A problem that has occurred several times in the pandemic’s almost two-year history. State governments and the federal government repeatedly announced measures that were later cashed in by the courts. One of the most famous examples is the curfew. But a renewed ban on leaving the house at night would not stand up legally from the current point of view, says Ferdinand Kirchhof, Vice President of the Federal Constitutional Court from 2010 to 2018 Merkur.de.
“The measures that are currently in force in Germany are legally impeccable,” says Kirchhof. But in view of the tense pandemic situation, the health policy question arises as to whether more should be done. Because from a constitutional point of view, the current provisions are to be assessed as “very cautious”.
Lockdown for unvaccinated people in Germany? Former constitutional judge classifies the legal situation
Kirchhof assumes that a complete lockdown for unvaccinated people, as, for example, the state of Austria has just decided, is legally unthinkable in Germany. “But if the rule of law can identify groups that obviously contribute more to the spread, a distinction is appropriate.” He means: a distinction between vaccinated and unvaccinated. Kirchhof says that participation in large events such as visits to stadiums or clubs can definitely be forbidden – mentioned in the Corona Code 2G rule and already proposed by politicians, and even already implemented in some federal states.
Because the group of the unvaccinated can “largely eliminate the apparent risk for themselves and others through a vaccination,” says Kirchhof. However, such strict regulations do not work for other areas such as work or meeting friends. “If I completely exclude someone, that is, condemn them to house arrest, that is of course a curtailment of basic rights that has a very wide impact,” says Kirchhof. For this there are huge reasons that he cannot foresee at the moment.
Compulsory vaccination in Germany: Constitutionally permissible – especially for medical staff
A compulsory vaccination, which is currently being discussed, either for certain occupational groups or for the whole, is, however, permissible from a constitutional point of view, says Kirchhof. Because it is becoming clear that the unvaccinated are the main drivers of the pandemic. “We have to weigh up: a vaccination is undoubtedly an interference with the physical integrity. On the other hand, protecting the population is much more important. “Kirchhof says:” Vaccination is the decisive factor in ending this pandemic. ”
Historically, there are several models of compulsory vaccination in Germany, and two in particular are known: Until 1976, the West German population was vaccinated against smallpox. The disease is now considered to be eradicated. And since March 1, 2020, children must be vaccinated against measles before entering school or kindergarten. The same applies to people who work in these or medical facilities, i.e. educators, teachers and medical staff.
“These role models have all proven to be constitutional,” says Kirchhof. Such a group-related compulsory vaccination, as is the case with measles, is now also being discussed for the coronavirus. The topic was also in the traffic light negotiations between the SPD, the Greens and the FDP. Kirchhof says: “Medical staff in particular have the task of caring for, treating and healing others. Then they also have to put up with more in order to avoid becoming a risk for their patients. “Kirchhof considers a job-related vaccination requirement as constitutionally permissible, in this group he sees even” stronger arguments for a vaccination requirement than in non-body-related professions. “
3G at work: the question of vaccination status from the point of view of experts is legal
Kirchhof also assesses the 3G obligation at the workplace, which the traffic light would like to introduce, as unvaccinated people would not even be excluded here. And the employer’s right to ask about the vaccination status of his employees, which is often hotly debated, is conceivable and also makes sense. “The employer has a duty to protect his workforce,” says Kirchhof. “He can only fulfill this if he knows what’s going on in his company.” The lawyer gives an example to underline his argument: If an employee goes to a pub after work to have a beer, he has to go there answer the question about his vaccination status. In the thesis, however, the question is inadmissible. “The relationship between employee and employer is much more intensive and more dutiful,” says Kirchhof. Here he sees a need for change.
Video: soon lockdown for unvaccinated? Incidence rises to 312.4
And not just there. Kirchhof accuses the state of significant failures in the fight against the pandemic. “We always had breaks between the waves, but they weren’t used,” says Kirchhof. The Robert Koch Institute is now working with estimates, for example has completely lost track of vaccinations. “The RKI does not get the facts under control, the federal authority should have played a major role in the pandemic.” The Kirchhof calls a “disgrace” and says: “One could well ask whether the state has fulfilled its duty to protect in the past two Years. “(Fmü)