Law – Corona measures on shaky legs

The lockdown for the unvaccinated. The 2G controls in retail. The curfew at 10pm. Cornerstones of the turquoise-green corona restrictions are shaking. The call for easing is getting louder.

“The curfew must finally be abolished,” said Tyrol’s governor Günther Platter (ÖVP) on Tuesday. He also saw a “need for action” with the lockdown for the unvaccinated. According to the governor, this should be put to the test with the introduction of compulsory vaccination at the beginning of February. Parts of the SPÖ, the FPÖ, Neos and business representatives are also insisting on easing.

Health Minister Wolfgang Mückstein (Greens) rejected this. You check regularly whether the measures are still necessary, he said on Tuesday. At the same time, Austria is still in the middle of the omicron wave, and the number of infections is very high.

Adhering to the restrictions is becoming increasingly problematic from a legal point of view. Due to the highly infectious but milder omicron variant, constitutional lawyers have doubts about the legitimacy of the measures.

New starting position

The lockdown for the unvaccinated came into effect on November 15, when the more dangerous Delta variant was still rampant. It still applies today: Unvaccinated people are only allowed to leave their homes for certain reasons, for example to go shopping or to work.

“As things stand at present, there is some evidence that this lockdown is losing or may have already lost its constitutional legitimacy,” says constitutional lawyer Bernd-Christian Funk from the Sigmund Freud Private University in Vienna. Constitutional lawyer Peter Bußjäger from the University of Innsbruck is also critical of the lockdown.

“The lockdown for the unvaccinated was justified in late autumn and winter,” says Bußjäger. Because such a measure can only be taken to avert an impending collapse in health care. It was even easier to argue that during the delta wave. “Now it’s not easy to explain where, despite the increasing number of hospitalizations due to omicron, there is actually a risk of collapse,” says Bussjäger.

Even if this succeeds, it still has to be clarified: “What does the lockdown for the unvaccinated do to ensure that this impending collapse does not happen?” Because of the far-reaching 2G rule, it is already not possible for the unvaccinated to visit shops or restaurants. The lockdown can therefore only prevent “these people from meeting in the private sphere”, in which the 2G rule pushes them even more. “And you can hardly control this private area,” says Bußjäger.

For Funk, the “massive doubts” as to whether the lockdown is still serving its purpose are justified: “Apart from the fact that one has to ask whether it has ever fulfilled it.”

It is also questionable whether much has been achieved by moving the curfew from 11 p.m. to 10 p.m., says Bußjäger. “This also provokes private celebrations, which then cannot be controlled,” said the constitutional lawyer. Consideration should be given to “reducing current restrictions where they obviously do not do much”.

Questions about compulsory vaccination

Whether it’s about the lockdown, the 2G rule or the curfew: “The assessment of the admissibility depends largely on whether it is an effective and suitable means of combating the pandemic,” explains Funk. It could happen that an initially flawless measure “becomes unconstitutional” due to a new development.

And what does that mean for compulsory vaccination? Can this still be justified if restrictions are withdrawn and a vaccination fleet is organized?

“The obligation to vaccinate is geared towards the longer term. It should mean that health care can no longer be endangered in the longer term,” says Bussjäger. The legislature must be given the opportunity to avert this threat with foresight. It has to be accepted that he is treading on uncertain ground because of the omicron variant. He would therefore “in principle support the admissibility of compulsory vaccination”.

“Even more serious interventions in the form of lockdowns should be prevented by compulsory vaccination,” explains Funk. However, the lottery and the withdrawal of the measures could be taken into account when assessing the proportionality of the measures. An essential question is “whether there were no milder measures available at the time the obligation to vaccinate was imposed,” says Funk.

Penalty for application not necessary

The Constitutional Court (VfGH) will have to deal with such questions. The first complaints about compulsory vaccination could reach the Supreme Court in February. It is true that penalties are not to be imposed by the police until mid-March. However, individuals affected could make individual applications to the Constitutional Court beforehand. Namely, when people get vaccinated after the mandatory vaccination comes into force in February, although they refuse to do so. “They can assert that their rights are directly affected by the legal obligation,” says Funk. A possible punishment does not even have to threaten.

“It is clear in case law: If I am threatened with a fine, I do not have to accept it in order to go to the Supreme Court. I can contact the Constitutional Court beforehand,” says Bussjäger. This is the case with compulsory vaccination. It stipulates that people must be vaccinated by March 15, otherwise they face a penalty. Therefore, the penal officer also assumes that the first cases could end up at the Constitutional Court as early as February.

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