Many of the measures implemented to contain the corona pandemic restrict fundamental rights. Here we monitor developments, answer frequent questions and provide legal assessments. Our FAQ section is regularly expanded and updated.
Even in the current situation, which is marked by uncertainty, government measures must be carefully scrutinized. We are committed to analyzing whether the current government measures are compatible with the German constitution. If there are any unconstitutional restrictions of fundamental rights, we will take appropriate legal action.
Last update: Saturday, 28 March, 7:45
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The German version of this Q&A is available here: https://freiheitsrechte.org/corona-und-grundrechte/
Questions and Answers
- What happens to our fundamental rights in times of a pandemic?
- On the basis of which laws and regulations are our rights currently restricted?
- What happens when people do not comply with the restrictions of public life, e.g. by violating quarantine orders or bans on entering public places?
- Does the right to life and physical integrity justify any interference with other fundamental rights?
- Are the imposed restrictions such as contact bans and curfews lawful?
- Can mobile phone providers simply pass on mobile phone data to the Robert Koch Institute?
- Would the German government be allowed to collect movement profiles from mobile phone data in order to identify contact persons of infected persons?
- Can the Bundestag still pass laws when a large number of members of parliament are missing?
- Can the Bundesrat still approve laws or endorse them if a large number of members are absent?
- What if the Bundestag and Bundesrat do not have a quorum? Can “emergency laws” be passed in the event of a pandemic?
- What are the responsibilities of the federal government, respectively the federal states, in the event of an epidemic?
- Does the state have to help freelancers, self-employed people and those employees who have practically no income because of measures to contain the pandemic?
- What can help look like in concrete terms for people whose right to a dignified existence is acutely threatened?
- What can the state do to ensure adequate and protected housing and protect people from homelessness?
- What obligations does the state have towards people with disabilities in the Corona crisis?
- What can the State do to protect asylum seekers in shared or collective accommodation?
- What about undocumented migrants? What rights do they have in the Corona crisis?
- How does the increased risk of infection in prisons affect the proportionality of imprisonment?
A. Fundamental rights in times of a pandemic
A.1. What happens to our fundamental rights in times of a pandemic?
In order to prevent the spread of dangerous diseases such as COVID-19, the state may restrict fundamental rights. The legal basis for current measures is provided above all by the Protection against Infection Act (IfSG). This allows for various protective measures to combat epidemics, including measures that restrict the freedom of assembly and the inviolability of the home (§ 28 IfSG). The IfSG determines how and in which rights the state may intervene. Furthermore, based on § 32 IfSG, the federal states can issue their own protective measures in the form of ordinances, thereby also restricting basic rights.
However, it is important to note that even in the current exceptional situation, the state may only interfere with our fundamental rights if this is proportionate. So not all measures that are taken or could theoretically be taken to prevent infection are automatically lawful. For each individual measure taken, the interference with fundamental rights must be proportionate to the purpose it pursues. At present, the aim is to prevent the spread of a disease and thus to protect the right of previously uninfected third parties to life and physical integrity (Article 2 para. 2 sentence 1 of the Basic Law (GG). In general, the following applies: The more a measure would encroach on fundamental rights, the more promising and without alternative it must be. And the objective of preventing the spread of a disease must be pursued, as far as possible, by measures that restrict fundamental rights as little as possible. It is therefore always a matter of weighing up the legal interests involved.
To give an example: If a public health officer enters the home of a person suspected of being infected in order to examine them, the state encroaches on the right of the person concerned to the inviolability of the home (Article 13, para.1, 7 GG). This is justified, however, because the state wants to protect the right of third parties to life and physical integrity with appropriate control measures. In this case, this weighs more heavily than the inviolability of the home of the presumably infected person.
To protect against a dangerous disease, the Protection against Infection Act (IfSG) also allows the freedom of assembly (Article 8 GG) to be restricted. Demonstrations can be banned or limited. Freedom of assembly is of great importance in a democracy. Restrictions and their proportionality must be examined particularly critically. However, given the the high risk of infection by COVID-19 and the possible breakdown of the health care system even restrictions of the freedom of assembly may be proportionate.
Infection protection measures also encroach on many other fundamental rights, e.g. the freedom of the person (Article 2 para. 2 sentence 2 GG) in regards to quarantine, physical integrity (Article 2 para. 2 sentence 1 GG) in regard to medical examinations and the secrecy of letters and mail (Article 10 para. 1 GG) when written messages from potentially infected people are read. On the basis of statutory regulations, the government can also restrict the freedom of movement (Article 11 para. 1,2 GG), for example by prohibiting people to leave certain areas or forcing them to leave other areas. The principles described above, in particular the principle of proportionality, apply to all encroachments on fundamental rights.
A.2. On the basis of which laws and regulations are our rights currently restricted?
The Protection against Infection Act (IfSG) is the legal basis for the current measures intended to slow down the spread of COVID-19. In the event of a pandemic, the Protection against Infection Act allows the government to restrict our basic rights, in some cases to a large extent. However, these restrictions must be proportionate.
The IfSG regulates which diseases are notifiable at all and thus belong to the category of diseases which the state can take special measures to combat (§§ 6, 7 IfSG). Since an ordinance of February 2020, COVID-19 is also a notifiable disease. If infections occur, the competent authorities are empowered under §§ 28 to31 of the IfSG to take all necessary protective measures, for as far and as long as necessary to prevent the spread of transmissible diseases. These include quarantine and a ban on employment for infected or possibly infected persons.
In addition, § 32 IfSG allows the federal states to issue their own legal ordinances containing further rules and prohibitions. Since the federal states considered it important to take measures that are as uniform as possible, there are now two agreements between the federal government and the states.
The agreement of March 16, 2020 led to drastic measures by all 16 federal states, such as the closure of schools, day-care centers and clubs, but also theaters and playgrounds and the prohibition of meetings in churches, mosques and synagogues.
On March 22, 2020, the federal and state governments agreed on even more far-reaching measures. The federal states are now issuing extensive contact restrictions. People are only permitted to be in public places alone, in twos or with members of their own household. Service providers, especially hairdressers and beauty salons and tattoo studios, who had so far been partially exempted from the ban have had to close. Medically necessary treatments continue to be possible. Restaurants and pubs will also remain closed, but food and drinks can still be delivered or picked up. These rules apply for at least two weeks.
However, some federal states have already gone a step beyond these regulations. Bavaria and Saarland, for example, had stricter regulations in place before this agreement. Saxony, has issued a general ruling forbidding people to leave the house without good reason and with much more restrictive exceptions than those in the agreement between the federal government and the states.
All state regulations can be found on these overview pages:
- Mecklenburg-Western Pomerania
- Lower Saxony
- North Rhine-Westphalia
- Rhineland-Palatinate (measures until April 17, 2020)
A.3. What happens when people do not respect the restrictions of public life, e.g. by violating quarantine orders or bans on entering public places?
To enforce the individual measures of the Protection against Infection Act (cf. §§ 28ff IfSG), such as quarantine and occupational bans, the law contains both fine regulations and penal provisions. For example, it constitutes an administrative offense if no or incorrect information on the state of health is provided (§ 73 IfSG). Failure to comply with a quarantine order or an occupational ban is seen even as a criminal offense under § 74 IfSG, punishable by imprisonment for up to five years or a fine. The people concerned have to be informed by the authorities of these consequences.
According to § 73 IfSG, intentional or negligent violations of the statutory orders and general decrees issued by the federal states also constitute administrative offenses or even criminal offenses under § 75 IfSG. For example, anyone who does not comply with the “ban on entering public places” in the city of Freiburg is liable to fines of up to €25,000. The same is true in NRW, where authorities are instructed to “set fines starting at 200 Euros”
The measures are enforced by the local police authorities.
A.4. Does the right to life and physical integrity justify any interference with other fundamental rights?
In the public debate, the “hardest” measures are sometimes quasi-automatically seen as the most effective and therefore the only sensible ones. The matter being one of life and death leads to the assumption that any restriction of fundamental rights must now be accepted.
First of all, it is true that fundamental rights do not only protect us from state intervention. They also oblige the state to protect our rights. This is most clearly expressed in Article 1(1), sentence 2 of the Basic Law: all state authority is obliged to respect and protect human dignity. That is why the state must protect the population from the corona virus and cannot simply let the virus sweep through Germany.
However, the right to life and physical integrity is not free of restrictions. The Basic Law provides that the right to life can be encroached upon “on the basis of a law”, it is therefore subject to a simple reservation of the law (Article 2(2), third sentence). Like all other fundamental rights, it must also be “gently balanced” with conflicting constitutional law, in particular with other fundamental rights.
On the German legal blog Verfassungsblog.de, Prof. Kingreen gives good examples of cases in which this balance was not in favor of the right to life and physical integrity. Due to personal freedom and the right to self-determination, for example, no one becomes a post-mortal organ donor by default, although many people die because they lack the organ donation that is essential for survival. Similarly, in the decision on a speed limit on motorways, mobile freedom is given greater weight than the protection of lives that could be preserved with such a limit. In its recent ruling on assisted dying, the Federal Constitutional Court emphasized that the state’s duty to protect life is not absolute. In individual cases, it can take second place to serious rights of freedom – such as the right to self-determined death (Article 2(1) in conjunction with Article 1(1)), which follows from the general right of personality.
The right to life and physical integrity is therefore not automatically “stronger” than all other fundamental rights. The state must always bring all fundamental rights into careful balance.
A.5. Are the imposed restrictions such as contact bans and curfews lawful?
The restrictions of freedom that have been enacted are problematic from two main points of view: many measures lack an explicit legal basis; and it is questionable whether they are proportionate.
Is there a sufficient legal basis for the measures?
The government uses the Infection Protection Act (IfSG) as a basis for authorization. Under IfSG, various measures like quarantine can be taken, if there is a concrete case or suspicion of infection (§ 28 para. 1 IfSG). Even under the police and regulatory law of the federal states, which provides the legal basis for official measures to avert danger, a ban on entering certain places can only be imposed in specific individual cases. However, entire areas cannot be closed on the basis of these laws. Finally, certain measures can be taken under the civil protection law of the federal states if a disaster is declared – curfews are not regulated there either.
In the absence of a specific basis for intervention, the question arises as to whether curfews and contact restrictions can be based on a so-called “general clause”, that is a very generally formulated catch-all intervention norm. In the Infection Protection Act, there is a general clause for “necessary protective measures” (see § 28 para. 1 IfSG). However, there are strong reasons why this general clause is not sufficient. In the case of such far-reaching encroachments on fundamental rights as at present, a special legal basis with precise conditions is needed.
In the case of a newly arising situation of danger, however, it is at least conceivable to base measures involving intensive intervention on general clauses. This can be justified least for a limited period of time and as long as the legislature has not yet been able to react and create a legal basis. The idea behind this is that not acting would cause even deeper interventions in important protected rights, for example because the health of many and human lives are threatened. Whether the rapid introduction of initial restrictions, for example, is “necessary” to avert such dangers must be answered by scientists, especially virologists, and politicians. For such drastic measures, however, the legislator urgently needs to create a special legal basis for authorization.
In the meantime, the legislator has reacted and has added a half-sentence to § 28 paragraph 1 sentence 1 IfSG. It shall provide the legal basis for the far-reaching restrictions on movement that have come into force. However, it is highly questionable whether this half-sentence satisfies the requirement that all substantial value-based decisions must be made by parliament (so-called parliamentary reservation).
Are the measures proportionate?
Restrictions of freedom are only justified if they are appropriate and necessary to achieve a legitimate purpose. Furthermore, they have to be proportionate. They are necessary if there is no milder means of achieving the same effect. However, the legal judgment on current and future encroachments on fundamental rights faces the same problem as politics: we do not know how many new infections our health system can withstand per day. A thousand? A hundred? Five thousand? How long can it be how many? Nor do we know which measures would actually be most effective in containing the pandemic. In the face of so much uncertainty, the law gives politicians a great deal of leeway.
However, even in such a situation there are limits to government action. One of the important rules that still apply sounds banal: The measures must work, otherwise they are illegal. A proposal by the Federal Ministry of Health had to stop at this barrier: The authorities were to request the location data of the mobile phones of infected persons via radio cells in order to identify contact persons. Since this is technically impossible, Minister Spahn had to delete the passage from the new infection protection law.
The restrictions on freedom must also be coherent. For example, people who have been staying at their secondary residence for months must not be forced to return to their primary residence if this increases the risk of infection. That is why all bans must allow exceptions in order to do justice to individual cases.
The state must also question whether curfews (with exceptions) are really necessary or whether the prohibition of meetings (of more than X persons) does not achieve the same purpose in a milder way. Bavaria and Berlin, for example, are betting on the former, thereby exerting great pressure on the population to justify their desire to move in public space; North Rhine-Westphalia, on the other hand, simply bans meetings of more than two people.
Moreover, the restrictions on civil liberties imposed in this exceptional situation must not become the rule. All restrictions must be lifted as quickly as they were imposed, as soon as the situation allows.
A.6. May mobile phone providers simply pass on mobile phone data to the Robert Koch Institute?
Deutsche Telekom AG has provided the Robert Koch Institute (RKI) with telecommunications traffic data that can be used to track the flow of mobile phone users. The company took this step voluntarily in order to help the RKI contain the coronavirus pandemic. The data is meant to provide new insights into the spread of the virus and thus enable more efficient containment. With regard to data protection, this raises some questions.
The legal assessment of the data transfer depends substantially on a preliminary question: Was the transmitted data completely anonymous or not? If the data was not fully anonymized, it would be personal. In that case the mobile phone users concerned would be protected by the right to informational self-determination enshrined in the German Basic Law (Article 2 para. 1 in conjunction with Article 1 para. 1) and in the European Charter of Fundamental Rights (Article 8 para 1); the special conditions of the General Data Protection Regulation (GDPR) would apply. However, the GDPR does not apply to anonymized information (Recital 26 sentence 5 GDPR), making their transmission permissible.
But what would apply in the “worst case”, assuming that Telekom did not transmit completely anonymized transaction data and thus should have taken the GDPR into account? Then the transmission of transaction data from Telekom to the RKI would constitute data processing within the meaning of Article 4 No. 2 GDPR, for which Article 6 GDPR requests a justification. However, no such justification is apparent. In particular, there is no legal basis in the Protection against Infection Act that would oblige private companies to make personal transaction data available to combat epidemics (legal obligation within the meaning of Article 6 paragraph 1c GDPR). Furthermore, a transfer of non-anonymized data would violate the principle of so-called “purpose limitation” of data processing (Article 5 para. 1b DSGVO): The purpose of transmission to the RKI, namely the prevention of infections, does not correspond to the purpose of the original collection of mobile phone data, namely the implementation of the contractual relationship with Telekom. violations of the principle of purpose limitation can be justified by laws (Articles 6 para. 4, 23 para. 1 GDPR). However, the Protection against Infection Act does not provide for this.
Is the transmitted data anonymous or not?
There are conflicting indications in this regard. A spokeswoman for Deutsche Telekom assured the Tagesspiegel thatthe data has been completely anonymized. The smallest unit of a data set already contains the combined data of at least 30 users, making individual conclusions impossible. The Federal Data Protection Commissioner also shares the view that, in contrast to a similar practice in Austria, for example, the data in question does not allow conclusions to be drawn about individual persons. However scientists have questioned whether complete and reliable anonymization of transaction data of this kind is possible. Furthermore it is commonly underestimated, that data that is believed to be anonymous can later be re-personalized by new methods. Therefore the transmission of anonymized data should at least be subject to a deletion deadline. In particular, re-personalization by comparison remains comparatively possible if – as is the case with Telekom – the forwarding agency retains the raw data set. In this scenario, better legal protection regulations are needed which reflect the constantly increasing possibilities of data processing.
Without an analysis of the transmitted data sets on the basis of science and data-protection concerns, it is hardly possible to conclusively assess whether the data sets have actually been reliably anonymized. If this is not the case, the transfer is currently probably not permitted under data protection law. This means that the transfer is burdened with great legal uncertainty in fact and law. Interventions in fundamental rights must, however, always be proportionate – even in crisis situations –- and be based on a suitable legal basis. If the legislator considers the evaluation of movement data to be necessary and helpful, it should therefore create a – proportionate – legal basis. This would enable legal control in accordance with the rule of law. Given the many open questions in connection with data transmission, it would be sensible to involve both the Federal Commissioner for Data Protection and Freedom of Information (BfDI) and scientific expertise in advance of such an undertaking, in order to ensure that data protection is guaranteed.
A.7. Would the Federal Government be allowed to collect movement profiles from mobile phone data in order to identify contact persons of infected persons?
In the course of the corona pandemic, proposals on how best to contain the disease are coming thick and fast. This debate does not shy away from massive restrictions on informational self-determination. Some commentators want to reduce the risk of infection by means of new surveillance technologies. For example, there are plans in various places to obligate telecommunications service providers such as Deutsche Telekom AG to transmit the movement data of their mobile phone customers. These movement profiles could then be used to determine with whom an infected person was in contact.
Could the Federal Government oblige the providers to provide such data? In the current legal situation, the answer to this is quite clear: No.
De facto, Deutsche Telekom AG has already transferred data to the Robert Koch Institute, however this data is said to have been anonymized whereas in the above-mentioned proposal the data would be completely personalized. Such an obligation would violate the freedom of occupation (Article 12 para. 1 sentence 1 GG) of the telecommunications companies and, above all, to a very considerable extent the right to informational self-determination (Article 2 para. 1 in conjunction with Article 1 para. 1 GG and Article 8 para. 1 European Charter of Fundamental Rights) of mobile phone users. For such a serious intervention, the federal government would need a clearly defined legal basis. This does not exist.
Could the legislator therefore create such a legal basis if it wanted to? In our opinion, the answer is: No.
In our view, such a law would be constitutionally very questionable. Such an intensive interference with the basic rights of the citizens would have to comply with the principle of proportionality under the rule of law. But the law would probably already fail to clear the lowest hurdle of this standard: The suitability. If laws interfere with fundamental rights in order to avert a public danger, they must first of all be suitable to counteract this danger. However, it is not clear to us how cell data can help to reduce the –real and considerable – risk of a corona infection.
Cell data is retrieved by broadcasting towers radio transmissions. These provide information about which users were in the respective transmission area at what time. However, this transmission area usually covers an area of several hundred square meters and thus possibly thousands of people. In rural areas, sometimes so-called omnidirectional antennas are used, They only show whether someone has been within a circle of several kilometers around the mast. It is therefore not clear how reliable information about individual movement profiles can be drawn from these scattered puzzle pieces. In any case, the informational gain for the health authorities would be disproportionate to the severity of the intervention.
Against this background, a corresponding legal basis would be disproportionate, violate the fundamental rights of telecommunications companies and their customers and therefore be unconstitutional.
B. Federalism, presence of a quorum in the Bundestag and Bundesrat and state of emergency in the case of epidemics
B.1. Can the Bundestag still pass laws when a large number of members of parliament are missing?
In principle, the Bundestag can pass resolutions and laws even when only a minimal number of members are present. This is quite normal, even without the Corona pandemic.
The constitution is silent on the question of how many members of the Bundestag must be present for it to pass resolutions, leaving it to the rules of procedure to regulate this (Article 40 para. 1 sentence 2 GG). These stipulate that more than half of all members must be present for the Bundestag to have a quorum (Article 45 para. 1 of the rules of procedure of the Bundestag, GOBT). The existence of the necessary quorum is presumed. It is therefore deemed present until the opposite has been established. If there is any doubt that the Bundestag has a quorum, a parliamentary group or five percent of the members of the Bundestag, who must of course be present for this, can make a motion. Only in that case there is actually a count to see whether sufficient members of the Bundestag are present (Article 45 para. 2 GOBT).
This also means that if less than five percent of the members of the Bundestag are present, no such motion can be filed. For this reason, some voices in the legal literature assume that an absolute lower limit has been reached and that the Bundestag is then not quorate. This can be countered by the fact that even in such a situation, it is still possible for members of a parliamentary group to submit a motion to have the quorum established. The Federal Constitutional Court has not yet ruled on this legal question. But: Only the Federal Constitutional Court can declare a law null and void (so-called “power to overrule”). Even a law that has been passed by less than five percent of the members of parliament is therefore effective for the time being. This situation could therefore lead to a shift of majorities in the Bundestag as a result of illness and quarantine failures, meaning that a very small number of present members of parliament could pass effective laws in the Bundestag. There are no possibilities to vote in spite of absence, for example by “e-voting”.
B.2. Can the Bundesrat still approve laws or endorse them if a large number of members are absent?
The Bundesrat participates in all laws by approving them (so-called approval law) or by endorsing them (so-called objection laws). In the Bundesrat each federal state has votes according to the number of its inhabitants (for the distribution see here). The state’s votes are exercised by members of the state governments (Article 51 para. 1 GG): In practice, the minister presidents and all ministers and state secretaries of the individual states are appointed and can represent themselves (Article 51 para. 11) sentence 2 GG).
The Bundesrat only has a quorum if the majority of its votes is present (§ 28 para. 1 rules of procedure of the Bundesrat, GOBR in conjunction Article 52 para.2 sentences 1 and 3 GG): One representative in each state is sufficient to represent all votes of the state. According to the current distribution of votes, the Bundesrat thus has a guaranteed quorum if the representatives of ten federal states are present. If the representatives of the seven most populous federal states were present, these would also suffice. In contrast to the Bundestag, however, the provision in the rules of procedure of the Bundesrat states that the president must cancel the meeting if there is no quorum (§ 28 para.2 GOBR). Thus, if more than half of the votes of the Bundesrat are not present due to illness or quarantine, then the lack of participation in the Bundesrat would cause a law to not pass. However, because of the representation regulations, this is unlikely.
B.3. What if the Bundestag and Bundesrat do not have a quorum? Can “emergency laws” be passed in the event of a pandemic?
There are situations in which laws can no longer be passed, namely when the Bundestag and/or Bundesrat doesn’t have a quorum. The Basic Law does not provide exceptions for “emergency laws”.
But in more detail: The Basic Law offers the possibility of emergency legislation in the case of defense, i.e. if the Federal Republic is attacked with armed force or if such an attack is imminent. Then, instead of the Bundestag, the so-called “Joint Committe” can meet as an “emergency parliament” and decide on important measures (Article 115a para. 2 GG). The Joint Committee is a kind of reduced mixed body of Bundestag and Bundesrat. It consists of 48 members, two-thirds of whom are members of the Bundestag and one-third of whom are members of the Bundesrat. Its members are selected at the beginning of each legislative period according to the strength of the parliamentary groups; the democratic majority is thus maintained (Article 53a para. 1 GG).
Since the Joint Committee consists of members of the Bundestag and the Bundesrat, it too would not be able to act if these members of the Bundestag or Bundesrat were unable to meet due to illness or quarantine measures. But that is not relevant in this case anyway, because the Joint Committee only becomes active in case of defense, not in case of a pandemic.
Currently, reform considerations are underway to introduce an emergency regulation for the case of a pandemic (see the reports of LTO and Spiegel Online). In particular, the question is how to maintain the majority balance even if the parliamentary groups are affected by differing degrees by losses due to illness or quarantine. To this end, a so-called “pairing solution”, such as the one that is already practiced in Great Britain and, in the past, in Germany, was initially considered: In this case, other parliamentary groups also withdraw members of parliament when votes are taken, so that the original majority relationships are maintained. Such arrangements are possible without a constitutional amendment. But: If a parliamentary group does not keep to these agreements and its delegates still all vote, the decision of the Bundestag would be nevertheless valid. That is why the Bundestag would now like to amend its rules of procedure in such a way that the presence of a quarter of its members is sufficient to constitute a quorum. The amendment is only to remain in force until September 30, 2020. There is currently no discussion of also changing the rules on the quorum of the Bundesrat in such a way that this body would – under certain conditions – also be quorate with less than half of its votes. This is probably for the best, because in practice this could be ensured with a small number of federal state representatives, thus possibly greatly distorting the individual states’ interests.
B.4. What are the responsibilities of the federal government, respectively the federal states, in the event of an epidemic?
It is not always easy to determine who is responsible for which infection control measures in a federal state. With the Protection against Infection Act (IfSG), the federal government has created the legal basis for the individual measures. However, the federal states decide which measures are actually taken.
Protection against infection is the subject of competing legislation under Article 74 para.1 nr. 19 of the Basic Law. This means that the states can only enact their own laws as long as and to the extent that the federal government has not itself enacted a law. Here the federal government has exercised the legislative competence by enacting the IfSG. However, the states are the ones responsible for taking actions based on the IfSG, i.e. in particular quarantine orders (§ 30), occupational bans (§ 31) or curfews (§ 28). The individual federal states decide who the responsible authority in their respective state is. For North Rhine-Westphalia, for example, the responsibilities are regulated in the Ordinance on the Regulation of Responsibilities under the Protection against Infection Act (ZVO-IfSG). This states that different authorities are responsible for different measures. For example, the cities and municipalities (and their respective local regulatory authorities) are responsible for the measures of §§ 28, 30 and 31 IfSG. Therefore, individual cities within a federal state sometimes put their own measures in place.
In addition, § 32 IfSG empowers the states to issue their own regulations. In Germany, this option has been made frequent use of. In addition, the Federal Government and the states have concluded two agreements to ensure uniform regulations in all federal states. All 16 states have reacted to the agreements with corresponding regulations, insofar as they had not already done so before. The respective state regulations differ only in details. However, there are already indications that individual states are now pressing ahead with further measures.
The IfSG also defines responsibilities for the Robert Koch Institute and the Federal Ministry of Health. According to § 4 IfSG, the Robert Koch Institute has the task of developing concepts for the preemption and early detection and prevention of transmittable diseases. At the request of the state health authorities, it also advises on concrete measures in the individual states. Together with the Federal Ministry of Health, it is also involved in the exchange of information between the Federal Government and the states in accordance with § 5 IfSG. The details are regulated in the General Administrative Regulation on the coordination of infection protection in epidemically significant cases.
C. Obligations of the state to protect particularly vulnerable population groups
C.1. Does the state have to help freelancers, self-employed people and those employees who have practically no income because of measures to contain the pandemic?
All people in Germany have a basic right to a decent minimum subsistence level, derived from human dignity and the welfare state principle. The state must take the necessary measures to protect this right and provide material support (see BVerfG, judgment of 9 February 2010 – 1 BvL 1/09 -, marginal no. 134). In addition, the international covenant on economic, social and cultural rights obliges the Federal Government to guarantee specific social rights such as the right to adequate living conditions, including adequate and protected housing.
Freelancers and self-employed persons are particularly affected by the current government measures against the spread of corona. Events have to be cancelled, sports studios and small shops have to close: All those freelance photographers, event managers, yoga teachers or florists who were not able to build up reserves, are currently facing existential problems. Employees are also affected. Especially in smaller companies, continued payment of wages in case of loss of working hours due to closures or childcare cannot be guaranteed. Many affected people are asking themselves how they will be able to pay the rent and other running expenses in the next month. Rent arrears are particularly threatening: Anyone who is in arrears with more than one month’s rent in a two-month period risks being evicted.
The Protection against Infection Act (IfSG) only provides very limited compensation for infection protection measures. According to § 56 IfSG, sick persons or persons suspected of being sick who have been ordered to be in quarantine or banned from their profession can receive compensation for loss of earnings. However, most people are not affected by such individual case orders, but by the general closure orders.
In order to make sure that nobody drops below the minimum subsistence level, quick and unbureaucratic measures are needed. The Federal Government, state governments and local authorities are free to choose the means. However, the funds must be suitable to ensure a decent existence for all people in Germany – regardless of decreasing processing capacities in the welfare offices and the acutely increasing number of people affected by poverty.
C.2. What can help look like in concrete terms for people whose right to a dignified existence is acutely threatened?
One possible solution are Emergency funds for self-employed persons and those employees affected by the crisis, from which monthly aid is paid. Such initiatives have been launched at federal level and in some states. The Federal Ministry of Finance has announced a solidarity fund for self-employed people and small business entrepreneurs. In Bavaria, immediate aid for self-employed persons is already in place, and the Berlin Senate also passed an emergency aid package for small businesses and the self-employed on March 19, 2020.
Most self-employed persons are not entitled to unemployment benefits under the german unemployment insurance system (Arbeitslosengeld I). But those in need of assistance can still apply for out of work benefits under Arbeitslosengeld II at their local Jobcenter. On March 25th the parliament passed a social protection package that facilitates access to social welfare considerably. In the current situation applicants no longer have to lay out their income in detail. Rent payments will be covered by the Jobcenters even if they exceed the permissible limits.
C.3. What can the state do to ensure adequate and protected housing and protect people from homelessness?
In times of quarantine and curfews, stable and adequate housing conditions are particularly important. The right to adequate housing is guaranteed in Art. 11 para. 1 of the UN Covenant on Economic, Social and Cultural Rights. According to the recommendations of the UN Social Committee, this includes not only protection against forced evictions but also an adequate supply of water, heating and electricity. The german constitution garuantees a subsistence minimum which includes adequate housing (see BVerfGE, February 9, 2010- 1 BvL 1/09 -, marginal no. 135). An adequate energy supply for heating, cooking and the operation of common electrical appliances such as telephones is also covered by the subsistence level (see also Sachverständigenrat für Umweltfragen, Gutachten 2016, tenor no. 200). In order to ensure adequate access to information, internet access must also be guaranteed (cf. Federal Court of Justice, ruling of January 24, 2013, III ZR 98/12).
Due to the Corona crisis, payment arrears will probably increase in the next weeks and months, with the consequence of possible forced evictions or power cuts. Under normal circumstances Landlords can terminate the contract if rent payments are two months behind. In order to guarantee the basic right to adequate housing in times of Corona, the parliament decided on a temporary moratorium for tenants, electricity and Internet customers on 25 March. Until the end of June, the respective contractual partners may not give notice if payment arrears are due to corona protection. Tenants can prove this by means of an affidavit or appropriate documents.
C.4. What obligations does the state have towards people with disabilities in the Corona crisis?
Under Article 11 of the UN Disability Rights Convention, Germany is obliged to ensure the protection and safety of people with disabilities in dangerous situations, including humanitarian emergencies and natural disasters. At first glance, this sounds self-evident – but in fact, people with disabilities are often particularly affected by crises. At present, people who are urgently in need of technical aids such as electric wheelchairs are finding it particularly difficult to have them maintained and repaired – and have thus lost virtually all freedom of movement. People who are dependent on assistance for a self-determined life currently often have to go without assistence, with potentially fatal consequences. The state is therefore obliged to identify such special situations of danger and to provide short-term, creative remedies.
In view of the spread of the novel corona virus, it is also crucial that people with disabilities have a right to information in accessible (“barrier-free”) formats. This applies in particular to people with hearing, visual and cognitive impairments. Press conferences and news are often not yet translated and subtitled, especially in “offline” television. A petition on change.org (change.org/CoronaInfos) is currently campaigning for information, such as news and press conferences from the German government, to be fully translated into sign language. Some government agencies are trying to remedy the situation: The Federal Centre for Health Education now offers an explanatory video on the novel corona virus in sign language, and the Federal Ministry of Health is publishing information in simple language. Since March 17, the Robert Koch Institute has been translating its press briefings into sign language, and the Federal Ministry of Labour and Social Affairs offers a sign language helpline.
People with disabilities also have a right to adequate health care. Many people are dependent on technical aids, animal or human assistance when visiting a doctor or in hospital. Or they need comprehensible explanations in simple language in order to be able to give informed consent to a health measure. In the context of increasingly overtaxed health care systems and especially quarantine measures, this can pose challenges for health care. It is important to recognize the considerable importance of the fundamental and human rights of the persons concerned – and to take appropriate precautions.
Further information on the right of people with disabilities to protection and security in disaster relief can be found in the 2015 study of the UN High Commissioner for Human Rights and the German Institute for Human Rights.
C.5. What can the State do to protect asylum seekers in shared or collective accommodation?
The impact of the Corona crisis is particularly severe for asylum-seekers who have to live in cramped conditions in collective accommodation. Because of the shared bedrooms, kitchens and sanitary facilities and the high number of residents, the virus can spread quickly there. The recommended distance to other people cannot be maintained in collective accommodation. In many refugee accommodations there are already confirmed cases of infection. The reactions vary depending on the federal state and the operators of the accommodation. In some shelters, cases of illness lead to strict isolation of all residents. Because of the already cramped conditions, this means people are kept in quarantine in a small room with four people. In other accommodations, the residents continue to move around without restriction despite confirmed cases of infection.
According to Article 16 para. 1 sentence 1 and Article 28 para. 1 of the Protection against Infection Act, the competent authority must take the necessary measures to avert the dangers associated with COVID-19. In the case of serious infection-specific dangers, the authorities have no scope of discretion.
Therefore, schools and childcare facilities are closed nationwide and events and other gatherings of large numbers of people are severely restricted. Against this background, it is difficult to understand why the federal states are maintaining collective accommodation for refugees in the current form.
In order to protect the residents from the virus and also prevent an uncontrolled spreading beyond the accommodation facility, the federal states should close the mass accommodation and house refugees in decentralized locations, e.g. empty apartments, hotels or smaller facilities. This would also help ensure humane accommodation of refugees in the event of quarantine or curfew.
According to § 3 of the German Protection against Infection Act, the authorities must inform the general public about the dangers and possibilities of prevention. Multilingual information on the corona virus has been published by the Federal Commissioner for Migration, Refugees and Integration. The non-governmental organisation Pro Asyl also continuously updates a news ticker with corona information for refugees and their supporters.
C.6. What about undocumented migrants? What rights do they have in the Corona crisis?
For undocumented migrants the Corona crisis is an existential threat. People who have no residence papers in Germany avoid going to the doctor for fear of deportation. Health care must be first approved by the social welfare office However, Paragraph 87 of the Residence Act requires social welfare offices to report undocumented migrants to the immigration authorities. In effect, this means undocumented migrants avoid the public health system.
This reporting obligation set down in Article 87 para. 1 and2 Residence Act (AufenthG) violates the right to minimum health care. Accordingly, the UN Social Committee has strongly criticized this system and recommended a legal reform. Some federal states have solved the problem through anonymous health vouchers.
During the current epidemic crisis, this gap in health care is highly problematic because an infection with Covid-19 may not be detected at all or only when a medical emergency occurs. This increases the risk of infection for people in the vicinity of the affected persons and the virus will be able to spread faster. The state is therefore currently under an increased obligation to provide health care for people who are not covered by health insurance. The federal states that don’t have a functioning system of anonymous health insurance vouchers must guarantee doctors and hospitals unbureaucratic reimbursement of costs in suspected Covid-19 cases. Undocumented migrants should not have to apply for a health voucher in the current situation.
In contrast, the special reporting obligations for Covid-19 infections in accordance with Article 6 para. 1 sentence 1 number 1 and Article 7 para. 1 sentence 1 of the Protection against Infection Act are less problematic for undocumented migrants. The health data which is passed on to the health office does not contain any reference to the residence status. The Health Office in turn passes on this data in anonymized form to the state authority and the Robert Koch Institute.
C.7. How does the increased risk of infection in prisons affect the proportionality of imprisonment?
In prison, social distancing is impossible. Shared cells, communal washrooms and dining rooms promote a rapid spread of the virus. At the same time, the proportion of risk patients is particularly high, as many inmates suffer from pre-existing conditions such as HIV or hepatitis. Under these conditions the state has an increased duty to protect the inmates. It must re-evaluate the proportionality of prison sentences and carefully examine which prison sentences are really necessary at present.
The federal states have recognized the particular danger of the virus spreading in prisons and have taken initial measures. In many federal states, so-called substitute prison sentences are suspended. substitute prison sentences are forced upon people who have not paid fines imposed on them, e.g. for continuously using public transport without a valid ticket or other minor offenses. In Berlin, short prison sentences of up to three years currently don’t have to be served. In some federal states youth detention centers have closed. For the remaining prisoners there are massive restrictions in place in all federal states: Visits are limited to a few hours per month and work and leisure opportunities are severely restricted.
An effective measure that would enable all the federal states to fulfill their obligations to protect people in detention would be to temporarily minimize the number of prisoners. Particularly in the case of people who belong to a risk group and who don’t pose a significant risk to public safety, the state should consider temporary alternatives to imprisonment.