Corona: Always new problems for the judiciary – politics

The pandemic has given the courts a powerful work program for almost two years now. From company closures to dance bans to quarantine orders, administrative courts in particular have decided on just about every facet of pandemic everyday life.

The wave of lawsuits has by no means subsided because now – after many urgent decisions – the main proceedings are pending for a decision. At the Higher Administrative Court (OVG) Münster, for example, 186 such proceedings are currently pending, and other courts are also reporting dozens of ongoing processes. Their completion could of course take longer – because autumn will probably bring more urgent applications.

From the beginning it was hotly controversial, for example, whether the Infection Protection Act in its changing versions offers a suitable legal basis. The Administrative Court (VGH) Mannheim is currently processing the business closings of the past year – shops, restaurants, fitness studios. Negotiations will probably not take place until next year. But a few months ago, colleagues from the VGH Thuringia asked the Federal Constitutional Court to clarify whether the tough measures in late autumn 2020 were even covered by the rules that were in effect until mid-November. That is why the VGH Mannheim has suspended individual proceedings until the answer from Karlsruhe is there.

Above all, however, the judiciary is eagerly awaiting the decision of the Federal Constitutional Court on the “Federal Emergency Brake” announced for the end of November. It will deal with restrictions on leisure facilities and hotels as well as school closings and compulsory testing. And first and foremost about the heavily controversial night curfew in spring.

Ordering general measures is no longer possible because of the vaccination quota

Even if it is difficult to repeat a nationwide ban on going out in a two-thirds vaccinated republic, many courts hope that supreme judicial guidelines will also apply to future restrictions. The President of the Federal Constitutional Court, Stephan Harbarth, was recently to be understood in this sense: The court justified its decisions “very, very extensively,” he said on ZDF. This could possibly also give indications “for measures in the current pandemic for the coming months”.

In May, Karlsruhe rejected urgent requests against the curfew. Unlike, for example, the Bavarian VGH – which of course had no law, but a state ordinance on the table – the Karlsruhe court had given the Bundestag a very generous amount of leeway and waived detailed control. At the time, the judges did not examine in more detail whether the lock really was of any benefit and whether the federal concept for reducing the number of infections was conclusive – but at least a “thorough examination” was promised for the main issue.

Looking back will also be looking ahead, to future contact restrictions or access bans that are emerging in the face of exploding incidences. Of course, all measures of this kind are now subject to the new sign of a significantly higher vaccination rate compared to the spring. Therefore, a distinction must now be made between those who have been vaccinated and those who have not been vaccinated, said Andrea Kießling, specialist in infection protection law, recently Time online. “Simply arrange things across the board, which then apply unreservedly to everyone, that is no longer possible.”

In the increasingly dramatic situation, nobody will want to bet that this means that all the nationwide measures that also affect the vaccinated part of the population are off the table. To protect life and limb, such restrictions could also be permitted, wrote Flensburg professor Anna Katharina Mangold in the Verfassungsblog.

Vaccination will play an increasing role

In any case, it is becoming apparent that immunization will play an increasing role. Only recently, the OVG Münster rejected an urgent application from a student who felt marginalized and pressured by the obligation to test for unvaccinated people. Tests are reasonable, found the OVG. The more 3G or 2G rules are ordered, the more often unvaccinated people have to stay outside – and will go to court, presumably with limited prospects of success.

Another variation on the subject of vaccination, the explosiveness of which is likely to increase dramatically, should vaccines also be approved for children under the age of twelve: What if the parents cannot agree on vaccinating an underage child? Both have custody – but who decides? The Frankfurt Higher Regional Court had to decide such a case at the end of August. The father wanted to have the 16-year-old son – who was particularly in need of protection due to previous illnesses – vaccinated. The OLG let the father decide, firstly because the Standing Vaccination Commission had already recommended vaccinations for those from the age of twelve, and secondly because the boy was in favor of it too. What is true of smaller children, of course, is still open; a supreme court judgment is still pending.

And finally, the Federal Court of Justice is about to make a judgment that comes from the panicky early weeks of the pandemic. Who actually bears the risk of paying the rent when the state closes stores – the retailer or the landlord? A textile shop from the Chemnitz area has sued, which had to close its doors due to a general decree of March 18, 2020. The owner therefore did not pay rent for April. While the regional court found the landlord right, the Dresden Higher Regional Court found a Solomonic solution. Because of “disruption of the business base”, the rent will be reduced by half for the duration of the closure. On December 1, the BGH will negotiate whether it will stay that way.

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