A. Fundamental rights during 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 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. Therefore, it is 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 high risk of infection by COVID-19 and the possible breakdown of the health care system even restrictions on the freedom of assembly may be proportionate.
Infection protection measures also encroach on many other fundamental rights, including the freedom of the person (Article 2 para. 2 sentence 2 GG) in regard 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. In addition, the government can also restrict the freedom of movement (Article 11 para. 1,2 GG), for example by prohibiting people from leaving 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. Which laws and regulations are currently restricting our rights?
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 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 (and pathogens) 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 both the COVID-19 and the novel coronavirus are notifiable. If infections occur, §§ 28 to31 of the IfSG empowers the competent authorities to take all necessary protective measures, for as far and as long as necessary to prevent the spread of the transmissible disease. 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 16 March 2020 led to drastic measures by all 16 federal states, such as the closure of schools, day-care centres, retail outlets (with the exception of grocery stores) and clubs, but also theatres and playgrounds and the prohibition of meetings in churches, mosques and synagogues.
On 22 March 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, 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 will 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 (in German):
- Mecklenburg-Western Pomerania
- Lower Saxony
- North Rhine-Westphalia
- Rhineland-Palatinate (measures until 17 April 2020)
A.3. Order, general ruling, legislative decree: What is the significance of the different legal forms of social-distancing and lockdown restrictions?
Germany’s federal states have not only adopted different regulations in terms of content to contain the coronavirus epidemic, but have also implemented them as different legal forms. Hamburg and Bremen, for example, have issued general rulings, while in Baden-Württemberg and Berlin legislative decrees have been adopted. Bavaria had initially regulated its contact restrictions by means of both general rulings and legislative decrees, which were identical in content. In addition, there were orders issued by the health authorities to individuals, e.g. to put themselves in quarantine, or direct orders by the police to observe the rules on distance.
Legislative decrees, general rulings and individual orders are different instruments. An individual order is the regulation of an individual case; it is expressly addressed to one or more specific addressees. A general ruling also regulates a specific situation, but in relation to a large number of persons who are not mentioned by name, but only have to be determinable according to general characteristics. A traffic sign, for example, is a general ruling. In contrast, a legislative decree, similar to a formal law, regulates an abstract general fact and applies to everyone. Unlike a formal law, which is passed by parliament, the government issues legislative decrees.
The differences between an individual order, a general ruling and a legislative decree lie, among other things, in the powers, the general conditions for the enactment of the respective legal act, the criminal law consequences and the possibilities of legal protection.
The difference under criminal law lies in the fact that in the event of a violation of a general ruling or even a quarantine order, one can be directly liable to prosecution or a fine, since, pursuant to § 28 paragraph 3 in conjunction with § 16 paragraph 8 of the German Infection Protection Act (IfSG), these are automatically immediately enforceable. In the case of a violation of a legislative decree, punishability can only be assumed under the wording of the IfSG if an enforceable order is also available (cf. also BVerfGE, 1 BvR 712/20). According to this interpretation, a violation of a legislative decree alone does not constitute an administrative offence or a criminal offence.
This means that in a federal state in which a legislative decree has been issued, one does not directly render oneself liable to punishment if, for example, one does not observe the rules of social distancing when taking a walk. However, the police can enforce compliance with lockdown rules by taking police measures, for example by sending you off the premises. If, in addition to the legislative decree, there is also a general ruling, as was the case in Bavaria, an enforceable order exists and one could be directly fined or made liable to prosecution.
The federal states are empowered by a federal law, the Infection Protection Act (IfSG), to take “necessary protective measures” as a general ruling or legislative decree. In concrete terms, the IfSG authorizes the competent state authorities, usually the public health authorities, to issue general rulings (§ 28 IfSG). Legislative decrees by the state governments are based on § 32 IfSG. Individual orders such as quarantine measures or consent to observation by the public health department can also be based directly on the IfSG by the competent authority (§ 29, § 30 IfSG). Germany’s federal government agency and research institute responsible for disease control and prevention, the Robert Koch Institute (RKI) had temporarily published a for this on its homepage.
Whether a social-distancing and lockdown restriction is issued as a general ruling or as a legislative decree depends on whether a concrete-individual or an abstract-general regulation is to be created. So far, different courts have emitted different views on whether the corona pandemic is a concrete individual case and whether a group of affected persons can be determined. The Administrative Court of Munich considers the Bavarian state general ruling to be unlawful, as it regulates a specific behavior, while the circle of addressees is too indeterminate: any person staying in Bavaria – even those who are only there temporarily – are affected by the regulations. Therefore, the Bavarian government should have issued a legislative decree (which it has done in the meantime). However, other courts, such as the Administrative Court of Dresden, consider the current corona epidemic to be sufficiently concrete and the group of persons to be sufficiently identifiable.
A.4. What happens when people do not respect the restrictions on public life, for example by violating quarantine orders or bans on entering public places?
Violations of restrictions on access, contact and movement, which are defined in legal regulations (Rechtsverordnung) as well as in general decrees (Allgemeinverfügung) by Germany’s federal states, can be punished as an administrative offence or a criminal offence (Ordnungswidrigkeit or Straftat). This is due to the Law on Protection against Infection (Infektionsschutzgesetz, short IfSG) (§ 73 Absatz 1a Nr. 6 and 24, § 74 and § 75 Absatz 1 Nr. 1).
As a matter of priority, especially in the event of an imminent danger, police and public order offices (Ordnungsämter) would have to enforce contact restrictions and curfew regulations by means of police law measures, i.e. preventive measures rather than sanctions.
Violations against enforceable orders, e.g. against general decrees (Allgemeinverfügungen), or against the individual order to stop a violation can constitute an administrative offence according to § 73 Abs. 1a Nr. 6 IfSG, and in connection with § 75 Abs. 1 Nr. 1 IfSG they may even constitute a criminal offence. Violations of regulations (Verordnungen) that are not accompanied by an individual order (Einzelverfügung) can only constitute an administrative offence, but not a criminal offence (§ 73 Abs. 1a Nr. 24). They could only be punishable under § 74 IfSG (see below). For this purpose, however, the novel coronavirus would have to be listed in §§ 6, 7 IfSG. This is not the case. By virtue of an ordinance of February 2020, both the disease COVID-19 and the novel coronavirus became notifiable as pathogens in extension of §§ 6 and 7 IfSG. However, it is unclear and therefore doubtful whether or not this has also extended the scope of the offence under § 74 IfSG.
The systematics of legal consequences of the IfSG is already confusing and even the federal states (Länder) seem to be confused about it. For instance, the Länder cite different or sometimes several differing legal bases for their general rulings. The references to criminal liability often do not match the legal basis. However, the legal basis determines the consequences under criminal law: insofar as the regulations are based on § 28 Absatz 1 Satz 1 IfSG, punishability according to the wording of § 74 IfSG would only be given in the case of intent and a verifiable spread of the pathogens. For a punishability for violation of a general ruling based on § 28 Absatz 1 Satz 2 IfSG, only the violation, not the dissemination, is required according to § 75, para. 1, no. 1 IfSG, and it is even sufficient according to § 75 Absatz 4 IfSG to violate a general ruling negligently – i.e. without intent. In addition, both the punishability and the obligation to pay a fine may depend on whether a general decree (Allgemeinverfügung) or a legal regulation (Rechtsverordnung) is involved.
A further problem arises from the fact that the regulations sometimes allow a wide scope of interpretation – for example, the permissible exception for “sport and exercise in the open air” (§ 5 Absatz 3 Nr. 7) of the Bavarian Corona Decree. It is doubtful whether these and similar regulations always comply with the criminal law requirement of certainty set out in the German Constitution (Artikel 103 Absatz 2 GG).
Nevertheless, some Länder have now issued catalogues of fines. 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. This is also the case in NRW, where the relevant public administrations are required to “set fines at a minimum of €200”.
The law is clearer in cases of violation of individual orders, such as a quarantine order or a ban on exercising a specific profession. For example, it constitutes an administrative offence (Ordnungswidrigkeit) if no or incorrect information is provided on the state of health, thus making it difficult for the authorities to monitor the situation (according to § 73 Absatz 1a) Nr. 3 IfSG). Failure to comply with a quarantine order or a prohibition to work is even a criminal offence punishable by imprisonment for up to five years or a fine if the person thereby spreads a pathogen (according to § 75 Absatz 1 Nr. 1 IfSG). Affected individuals are being informed about this.
Anyone who does not comply with a quarantine order may also be placed in a locked hospital or other locked facility, in accordance with § 30 Abs. 2 IfSG, even by use of force. However, such a deprivation of liberty requires a judicial order (pursuant to Art. 104 Abs. 2 S. 1 GG). The association Hilfe für Menschen in Abschiebehaft Büren e.V. reports from Büren in North Rhine-Westphalia that at least six refugees have been detained to enforce quarantine in the local deportation prison. However, a prison lacking sufficient medical staff is not a suitable facility in the sense of § 30 Abs. 2 IfSG. Furthermore, it is not evident how this coercive measure would have been necessary. To the contrary, what would be suitable and necessary would be appropriate and decentralized accommodation of refugees outside of the mass accommodations that are prone to infection.
A.5. Legal protection in times of the coronavirus: How can people defend themselves against curfews, quarantine orders and other measures?
Even in the current crisis situation, the legal protection guaranteed under the Basic Law (Article 19(4)) is still valid. This means that anyone can always defend themselves in court against measures of public authority, including measures to contain the spread of the coronavirus.
The selection of a concrete legal procedure depends on what a person actually wants to take action against: individual countries, for example, currently issue restrictions on the right of exit through both general rulings and statutory orders. In addition, there are administrative acts that only affect individuals, e.g. in the case of a quarantine order under the Infection Protection Act.
In the case of general rulings and administrative acts, an appeal must normally be lodged with the authority that issued the regulation before an action is taken. However, in the current situation, most regulations are declared immediately enforceable. This means that an appeal does not have a suspensive effect and the regulation must be followed even if an appeal is lodged. An immediately enforceable measure can therefore only be effectively challenged before the Administrative Court by means of the interim relief under § 80 (5) of the Administrative Court Rules – as an urgent application. The court then summarily examines whether the measure taken is illegal. If this is the case, the urgent application is successful and the court restores the suspensive effect of the objection. This means that the regulation does not have to be followed until the administrative court has made a final decision in the main proceedings. However, the final decision on the settlement will only be made in the main proceedings, which will take at least several months.
Please note: If a general ruling is declared illegal on the basis of an urgent application or an action, this applies in principle only to the applicant, so that the general ruling remains otherwise effective. However, if a general ruling is unlawful due to a lack of a legal basis, it is difficult to reconcile the principle of the rule of law if the competent authority nevertheless upholds it.
In turn, a legal regulation must be challenged before the Higher Administrative Court with the review of standardspursuant to § 47 VwGO. Any person who feels that their rights have been violated by the ordinance can apply for a review. The court then checks whether the ordinance violates higher-ranking law, for example whether a curfew violates fundamental rights. If the court finds that the ordinance is illegal, the court declares it invalid. This applies generally, unlike in the case of an action against an administrative act or a general ruling. This means that no one is bound by the ordinance anymore.
If someone commits an administrative offence, the competent authority may impose a fine after hearing the person concerned. Pursuant to § 67 of the Administrative Offences Act, an appeal against such a fine notice can be lodged with the authority that issued the notice. This objection must be received by the authority within 14 days. If the authority maintains its opinion, the public prosecutor’s office is called in after a further review, which also checks whether the notice is lawful. If the decision is unlawful, the public prosecutor’s office discontinues the proceedings. If, on the other hand, the public prosecutor’s office considers the fine to be lawful, the proceedings continue before the local court. A competent criminal judge then decides on the legality.
However, despite the guarantee of legal protection, the current situation may lead to de facto enforcement difficulties because many courts have switched down to emergency operation.
A.6. 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. Because this is a matter of life and death, it can lead to the assumption that any restriction of fundamental rights must now be accepted.
First of all, it is true that fundamental rights 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 coronavirus 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”, and 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 favour 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.7. 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 daily infections our health system can withstand. A hundred? A thousand? Five thousand? 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 planning 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 a certain number of 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, has simply banned 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.8. Do the restrictions on freedom of assembly mean that peaceful and political protests in the streets and demonstrations in general can be banned?
As part of our monitoring project “Corona and Civic Space in Germany” (in German), we have analyzed in detail the consequences of the coronavirus measures for freedom of assembly, the existing regulations, the way the authorities deal with demonstrations and the previous case law.
With regard to larger demonstrations such as the Easter marches, everyone would probably agree that a ban is proportionate because of the too-great risk of infection. But for smaller actions, where participants could keep the required distance to each other and wear masks, or where they just placed shoes in a public space, authorities and courts have had different reactions.
Authorities and courts predominantly understand the coronavirus containment measures of the federal states as a general ban on gatherings – even if the otherwise applicable social-distancing restrictions are observed at a meeting. The Neustadt Administrative Court, for example, considers it lawful to prohibit a demonstration by two people wearing protective masks and observing the social-distancing requirements. Other courts have also determined that assembly bans were lawful, giving little or no consideration to conflicting interests. On Sunday, the police dispersed demonstrations of the alliance #LeaveNoOneBehind, held in several locations as “individual walks”.
Elsewhere, however, authorities allowed gatherings under certain conditions. In Münster, after filing an emergency petition in court, the competent authority finally allowed, under determined conditions, a vigil against an imminent uranium waste transport from Gronau to Russia to take place.
Even though many currently agree that bans on assemblies are justified because of the risk of infection, the constitution has very strict rules on assembly bans, some of which are currently being violated.
A.9. Can 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. This raises some questions about data protection.
The legal assessment of the data transfer depends 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 of 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 had 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 may be possible for that data that was believed to be anonymous to 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 virtually impossible to conclusively assess whether the data sets have 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 legislators consider the evaluation of movement data to be necessary and helpful, it should 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.10. Can 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 coronavirus 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 oblige 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.
, although this data is said to have been anonymized, whereas in the above-mentioned proposal the data would clearly be personal. 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, which does not exist.
Could legislators 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 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 fail to clear the lowest hurdle of this standard, namely 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 coronavirus infection.
Cell data is retrieved by radio transmissions on broadcasting towers. 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 omnidirectional antennas are used, These only show whether someone has been within a circle of several kilometres around the mast. It is thus 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.
A.11. How is a “corona app” for the identification of high-risk contacts to be assessed from a data protection perspective?
There is currently intensive discussion about a “corona app”, which is intended to reconcile effective contact tracing and data protection.
The app, which is already being worked on at full speed, is to use the “Bluetooth Low Energy” technology. This is because the reliable range of the Bluetooth signal is roughly equivalent to what virologists describe as “high-risk contacts” with regard to the risk of corona infection — 1.5 to 2 meters physical proximity.
In order to be able to recognize such contacts afterwards and warn contact persons, the so called “Corona Apps” need to regularly send out a pseudonymous identification (ID). Other installations of the app in the immediate vicinity can receive these IDs and thus create lists of all smartphones that the Bluetooth sensor was able to detect.
If users of the app test positive for COVID-19, other users who have been in the vicinity can be informed that they may have been infected with the virus. In addition, the affected persons could be asked to be tested and/or quarantined or to report to the public health department.
The — voluntary — use of such an app would make it possible to track high-risk contacts extremely quickly without transmitting personal data. You can read exactly how the app would work in the article “Corona tracking & data protection: no necessary contradiction” on netzpolitik.org, co-authored by our chairman Dr. Ulf Buermeyer.
As of April 26, 2020, a fully developed and operational app is not yet available. A central point of contention so far has been the question of whether the comparison of possible hits should be centralized or decentralized. Initially, the German government supported the app standard PEPP-PT (short for Pan-European Privacy-Preserving Proximity Tracing), a solution in which a centrally managed server is used to match both the user ID of the infected person and the IDs of his or her contacts. The software developer consortium, which was originally founded by numerous research institutions, was committed to the highest possible standards for data protection and data security. For this reason, we considered the approach to be generally promising although we did not support it. In the meantime, however, it has become apparent that the PEPP-PT approach, in its specific form for Germany, was going to process more data than necessary.
To address these data protection concerns, the German government announced on April 25, 2020 that it was now pushing a decentralized model after all. In this decentralized model, infected persons publish their own IDs themselves and the IDs are compared locally on the respective smartphones.
Both approaches, centralized and decentralized, offer different risks and benefits for the privacy and information security of the individuals concerned. Both require trust in different actors. Now that a decision seems to have been made on the “system question”, it will be important to ensure that future “corona apps” actually meet the highest standards of privacy protection.
As a general rule: Before the widespread introduction of a contact tracing app, it would be highly advisable to make the corresponding source code publicly available. This is the only way for independent IT experts and data protection lawyers to seriously check whether the app is acceptable in terms of security and data protection.
A.12. May public health authorities simply pass on data on coronavirus infected persons to other authorities, e.g. the police?
According to reports on SWR radio, some health authorities in Baden-Württemberg provide the police with lists of people who have tested positive for the coronavirus. This way, the police can take concrete protective measures to protect the officers involved and to reduce the risk of infection before acutely necessary operations, such as traffic accidents. This procedure, which is supported by the State Ministry of the Interior, has already been criticized as illegalby the State Ministry of Social Affairs and the State Data Protection Commissioner, Stefan Brink.
We agree with this view. Health data are among the most sensitive of personal data. This is due to the fact that people (presumably) infected with a contagious disease are often socially stigmatized. This was also recently demonstrated by the fact that people perceived as Asian reported that they faced increasing hostility at the beginning of the coronavirus outbreak in Germany. For this reason, health data is particularly well protected by the Basic Data Protection Regulation (DSGVO). Accordingly, the DSGVO contains particularly high justification requirements for processing such particularly sensitive data (Article 9(2)). The DSGVO does permit the processing of health data if this is necessary to protect public health (Article 9 (2) lit.). However, such processing requires a clearly defined legal basis, which does not exist – particularly in the Protection against Infection Act.
An adequate level of data protection can only be ensured by a legal basis precisely tailored to the requested data transfer. It is precisely because health data is so sensitive that this legal basis would have to establish proportionality in individual cases and secure constitutional guarantees and protective measures. Such a basis would have to guarantee provisions on data security (Article 32 DPA), the rights of data subjects (Articles 12 et seq. DPA), the principle of purpose limitation of data processing (Article 5 (1) b) DPA), and deletion and monitoring obligations (Articles 16, 51 DPA).
Moreover, the transfer of health data would only have a democratically legitimate and comprehensible basis if it was based on a law. This is the only way to ensure that different authorities act predictably and uniformly. Presently, however, the Baden-Württemberg authorities appear to be acting in a completely inconsistent way: While in Böblingen, data on whether a person who tested positive has recovered is also transmitted, this is not the case in Stuttgart and Karlsruhe – and Tübingen does not transmit anything. Such an inconsistent approach creates uncertainty and breeds mistrust in the constitutional state.
Would it be possible to create a legal basis for the transfer of health data to public authorities? As Stefan Brink, the State Data Protection Commissioner, said: “In individual cases, and particularly if there are indications that the police may request health data from the health authorities, it may be legally possible. The protection of police officers and the containment of the danger of infection are legitimate goals of data processing. As is often the case, however, the proportionality of the individual case would be important. If there is a justified suspicion of a risk of infection in an individual case – for example, due to the circumstances of the imminent deployment – a legal basis could provide for the police to request corresponding individual data. This would be conceivable, for example, if it is foreseeable before a specific deployment that police officers will have to enter into so-called “high-risk contacts” – i.e., more than 15 minutes of physical proximity at a distance of less than 1.5 meters – with citizens, for example, in the case of detention or rescue measures. But: the police must not be given lists of coronavirus-infected patients “at large” and independent of deployment. An undifferentiated, mass transmission of unprotected health data without any proportionality and individual case evidence, as it is currently practiced, would be unconstitutional anyway.
A.13. Can people who are in isolation at their second home be forced to move to their first home?
Many people have fled the big cities to their second home in the countryside to protect themselves from the virus. In the popular holiday states of Schleswig-Holstein and Mecklenburg-Vorpommern, this is hardly possible for the time being. Both state governments have issued regulations prohibiting any private travel to these states. These regulations are based on the Federal Infection Protection Act (§ 32 BIfSG) and are intended to slow down the further spread of the coronavirus. In Mecklenburg-Vorpommern, the ordinance itself extends the travel ban to people with a secondary residence in the state. In Schleswig-Holstein, the districts of East Holstein and North Frisia issued corresponding (immediately enforceable) general rulings. The district of Ostprignitz-Ruppin in Brandenburg has also banned private travel by general ruling since March 25.
A restriction of tourist travel is not legally objectionable in principle. The fewer people travel, the less the coronavirus can spread. Restrictions on tourist travel can also help prevent overloading hospitals in rural areas. However, the federal states concerned must leave room for individual case considerations in the concrete implementation of these measures. Exceptions can be considered, for example, for people with previous illnesses who can protect themselves better or take care of close relatives at their second home. The expulsion of people who had already retreated to their holiday homes before the ban is even less comprehensible. In such cases, having them return to their primary residence would not be suitable to prevent further spread of the virus. On the contrary: the change of location would expose the affected persons and their surroundings to an increased risk of infection. The Schleswig-Holstein Administrative Court, however, considered the expulsions to be lawful in these cases as well and referred to the limited hospital capacities.
Meanwhile, Schleswig-Holstein’s state government has made concessions and on March 23, 2020 decided on various exceptions, including for people who were already at their second home. The district of Ostprignitz-Ruppin in Brandenburg has also made improvements and supplemented a number of exceptions with a second general ruling on March 27, 2020. Two Berliners who were not covered by these exceptions are now nevertheless allowed to travel to their second home after all. The Administrative Court in Potsdam ruled on March 31 that a collapse of the district’s health system was not foreseeable and that a ban on travel to their secondary residence was therefore not necessary.
In Mecklenburg-Vorpommern, the regulation does not provide for exceptions or opening clauses for unfair hardship. It is true that the regulatory authorities there are also bound by the principle of proportionality. The authorities must weigh up in each individual case whether expulsion is justified in the light of the circumstances of the individual case. Nevertheless, the state government should quickly amend the ordinance or regulate corresponding exceptions by decree. This is necessary to ensure clarity of standards and makes it easier for the regulatory authorities’ assessment of the issues.
A.14. Can the state oblige people to perform forced services in emergency situations?
Anyone currently looking towards Italy can see that the corona epidemic is capable of paralyzing central state and social infrastructures – above all the health system. This raises the question of whether and to what extent the state may obligate individuals to help – for example, to fill staff gaps in hospitals or supermarkets. Some federal states have passed or are planning to pass laws that will allow exactly that.
What does the German Constitution say about forced services?
The German Constitution (Grundgesetz) only allows under very strict limits to obligate people to perform services. There are historical reasons for this, among others: Forced labor was one of the proven means of the Nazi regime to systematically degrade, oppress and murder people in the context of the so-called “extermination through labor” program. For this reason, the German Constitution prohibits any form of forced labor, i.e. the objectively unlimited use of the entire labor force of individual persons against their will absolutely and without possibility of justification (Artikel 12 Absatz 3 GG) – except for deprivations of liberty ordered by court.
This must be distinguished from so-called conventional general service obligations which are the same for everyone, such as fire brigade or flood protection obligations (Artikel 12 Absatz 2 GG). According to this, the state can oblige individuals to provide narrowly defined and temporarily limited services for the common good as long as it does not use discriminatory or harassing selection criteria and as long as it can plausibly justify why the service is necessary.
Precisely because the service obligation – which is made possible in the abstract in laws – must be “general”, it is problematic if legislators foresee the service obligation only for certain social groups. For this reason, the federal states of Bavaria and North Rhine-Westphalia were rightly criticized for introducing service obligations only for medical personnel in their State Protection against Infection Act (Landes-Infektionsschutzgesetz) (Bavaria) or in the corresponding draft law in North Rhine-Westphalia. Partly as a result of justified civil society pressure, the selective service obligation in the now adopted NRW state law was replaced by a constitutionally unobjectionable volunteer directory.
This is also the view of the scientific service of the Bundestag: In an expert opinion submitted to the Süddeutsche Zeitung, the lawyers of the Bundestag argued that a duty of service, which by law only applies to medically trained personnel, cannot be “general”, and moreover not “conventional” in the sense of the German Constitution (Art. 12 Abs. 2 GG).
So, what does this mean for the coronavirus epidemic?
Individual Länder authorities can oblige appropriately qualified people or companies to provide support, if the Länder are no longer able to resolve the social ills caused by COVID-19 on their own. Qualified doctors or nurses could be pulled out of other areas and obliged to contribute to the management of the epidemic. Food companies could be instructed to help with the catering for these auxiliary staff. However, the authorities must make an appropriate selection decision when concretizing this general duty. It would be rather inconceivable, because unsuitable and therefore also disproportionate, to oblige “randomly selected” private persons to solve tasks for which they are not trained.
But: here too, in each individual case, strict proportionality requirements do always apply. Before the state is allowed to oblige people to perform services, it must in each individual case use all the resources at its disposal and try to solve the tasks alone. This is also explicitly stipulated in some state laws. The state must therefore be able to demonstrate that it cannot, under no circumstances, face a concrete danger itself and that this danger is at the same time so serious and urgent that it outweighs the rights of the person claimed for service. As a rule, a danger serious enough to justify such an intervention can only exist in the case of concrete dangers to life and limb. Thus, only when a concrete deficiency situation is fulfilled in an individual case, individuals can be obliged to serve.
Where are such compulsory duties regulated?
So far, compulsory duties have only been regulated for “disasters”. The federal states (Länder) are responsible for protection against disasters and their consequences. Accordingly, Germany has 16 different disaster protection laws – one in each federal state. These laws typically contain legal foundations for obliging individuals to provide services in order to prevent disasters (for example in § 43 Absatz 1 KatSG Nordrhein-Westfalen, § 28 Absatz 1 KatSG Niedersachsen, § 8 Absatz 1 KatSG Berlin, Artikel 9 Absatz 1 Satz 1 KatSG Bayern). In order for these “civil protection obligations” to be triggered, the first thing that needs to be done is of course to identify a so-called “disaster case”.
Since then, Bavaria’s law on protection against infection has also provided for a specific service obligation for medical personnel in the event of a pandemic. The prerequisite for a person to be called upon to perform a service is a “health emergency” (Artikel 1 Absatz 1 BayIfSG). This term is defined in a similar way to the term “disaster”, but specifically referring to epidemic disasters. Therefore the principle remains that compulsory services are only possible in the event of a – general or specifically epidemic – disaster.
Are the conditions for compulsory services currently met?
Because disasters are wide-ranging and their effects unpredictable, they are also only vaguely defined in legal terms. For example, the disaster protection law of Lower Saxony defines a disaster as “an emergency in which life, health, the vital supply of the population, the environment or considerable material assets are endangered or impaired to such an extent that its control by the relevant authorities and essential emergency and auxiliary personnel requires central management” (Artikel 1 Absatz 2 KatSG Niedersachsen).
In view of the exponential spread of the coronavirus throughout Germany, the now four-digit death figures and the potential to paralyze entire health care systems, as confirmed many times by experts, it is currently plausible to assume that the present situation constitutes such an exceptional risk. So far, however, only one federal state has declared a disaster: Bavaria (as of April 14, 2020). For this reason, only Bavaria is currently in a position to call on people for compulsory services.
Nevertheless, it remains a constitutional problem that the definition of disaster situations is so vague. In fact, it is deeply rooted in the rule of law that the most serious infringements of fundamental rights must be linked to the most narrowly defined legal concepts. Since this may not be possible due to the unpredictability and complexity of catastrophes, forced services must be particularly strongly legitimized, at least in the rule of law. That is why it should not be the government that decides whether a disaster has occurred, but the most democratically legitimized body in our constitutional state: the parliaments.
However, the general presence of an (epidemic) disaster does not say much about whether compulsory service is proportionate in individual cases – this second central condition must be fulfilled in order to make this legal. For example, for a local civil protection authority to be able to compulsorily oblige medical personnel to assist, the staff of the local hospital would have to be acutely overworked. So far, however, it is not evident that anywhere in Germany such shortages are to be found: The situation report of the Robert Koch Institute as of April 1, 2020 shows that 8,196 of 18,598 registered intensive care beds, i.e. 44%, are still available. Of the 10,402 occupied intensive care beds, only 1,876 were occupied by COVID-19 patients*. It is therefore not yet possible to say that the state’s own resources were insufficient to cope with the crisis. Therefore, compulsory service orders would currently be disproportionate and hence illegal.
However, as we have all experienced recently, social circumstances can change very quickly and drastically – and with them the constitutional legitimacy of service obligations. At present, it is hardly possible to predict how the epidemic will develop in the Federal Republic of Germany in the coming weeks and months and to what extent this will burden or overload our healthcare system. It is therefore difficult to make a serious forecast as to whether the conditions for compulsory services will be met in the future. However, should they be met – something that is not to be hoped for – additional restrictions will apply. For example, no one can be forced to perform services that would put his or her health at considerable risk (§ 28 Absatz 2 KatSG Niedersachsen) and under certain circumstances the state is also obliged to pay compensation (e.g. in Artikel 14 KatSG Bayern).
One thing remains certain: The responsibility to guarantee public safety lies with the state, not with the citizens. The obligation of individuals to actually solve public tasks must remain the absolute exception. For this reason, the declaration of a disaster must have a strictly limited time frame.
B. The German state and the Corona epidemic: federalism, presence of a quorum in the Bundestag and Bundesrat, state of emergency, legal reforms
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 coronavirus as the backdrop.
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 is there actually a count to see whether sufficient members of the Bundestag are present (Article 45 para. 2 GOBT).
This also means that if fewer than five percent of the members of the Bundestag are present, no such motion can be filed. For this reason, some voices in 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 a 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 temporarily effective. This situation could lead to a shift of majorities in the Bundestag as a result of illness and quarantine failures, meaning that a very small number of members of parliament could pass 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 states’ 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 a 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, this 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 a law could 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”.
In more detail: The Basic Law offers the possibility of emergency legislation in the case of defence, i.e. if the Federal Republic is attacked by armed forces or if such an attack is imminent. Then, instead of the Bundestag, the so-called “Joint Committee” 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, thus maintaining the democratic majority (Article 53a para. 1 GG).
Since the Joint Committee consists of members of the Bundestag and the Bundesrat, it 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 defence, not in the event of a pandemic.
Currently, reform considerations are underway to introduce an emergency regulation for the 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. However, if a parliamentary group does not keep to these agreements and its delegates still all vote, the decision of the Bundestag would nevertheless be valid. This 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 would only remain in force until 30 September 2020. There is currently no discussion about 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 no. 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, in particular quarantine orders (§ 30), occupational bans (§ 31) and 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. This means that 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 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 second agreement, which provides for more far-reaching measures, has also been implemented by the federal states in the meantime. However, the respective state ordinances still differ in many respects, as shown in an overview in the taz newspaper of 28.3.2020.
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 pre-emption 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.
B.5. How are the amendments to the Infection Protection Act, which the German Bundestag passed on March 25, 2020 in an expedited procedure, to be assessed?
On March 25, 2020, the German Bundestag passed amendments to the Infection Protection Act (IfSG) in a fast-track procedure. Section 28 of the law was supplemented, on which the many restrictions on freedom that we are currently experiencing are based. This addition is unsatisfactory because it is still far too vague. An initially planned amendment on the processing of mobile phone location data, which in our view would have been unconstitutional, was withdrawn by the Federal Government after fierce criticism.
The core of the amendment to the law, however, is a number of new powers for the Federal Ministry of Health (BMG) in the event of an “epidemic situation of national significance”. This is a new form of state of emergency, the determination of which is decided by the Bundestag (§ 5 paragraph 1 IfSG). If an epidemic situation exists in the opinion of the Bundestag, the BMG may demand various information from people who wish to enter Germany, for example on their vaccination protection and health, and may have them examined (§ 5 paragraph 2 No. 1). The BMG may also prohibit companies in international traffic, such as airlines, from transporting passengers from certain states to Germany and may demand the transfer of data on passengers (No. 2). Or it may order that a patent can be used, for example, for a vaccine in the interest of public welfare (No. 5).
Particularly problematic, however, are the authorizations of the Federal Ministry of Health to issue ordinances without the consent of the Bundesrat, which allow the ministry to temporarily deviate from numerous laws. At issue are the Medicines Act, the Narcotics Act, the IfSG itself and many other regulations. This reverses the relationship between the law and the ordinance; in fact, the law passed by parliament determines the limits of an ordinance issued by the government, not vice versa.
This means that whenever an epidemic situation of national significance is identified, a great deal of power is thus concentrated in a single agency – or its head, the minister – which has hitherto been divided in various relations: between the Federal Ministry of Health and other federal ministries or the federal government as a whole; between the federal government and the Länder; and above all between the executive and the legislature. So what has so far been intensively negotiated by various bodies will in future be in the hands of a single one.
These fundamental shifts in the separation of powers in our federal democracy must be put to the test as soon as possible. We believe it is absolutely essential that Parliament itself should look closely at the conditions under which authorities may deviate from which laws and in what way. This work should begin immediately. Parliament proved that it is capable of working even in the crisis with its extensive legislative decisions at the end of March.
The law that has now been passed contains many more provisions. One of them should be highlighted here: In the future, health authorities will be able to request data on passengers from the Federal Criminal Police Office if an airline does not voluntarily provide this data on time or completely. The background is that since 2018 the Federal Criminal Police Office has been collecting passenger data of all people flying to or from Germany. We believe that this unprompted processing of passenger data is contrary to fundamental rights and have therefore brought the matter before the European Court of Justice. It will be easier to discuss whether it makes sense to evaluate passenger data in exceptional situations such as an epidemic situation of national significance. In any case, the new power shows once again that collected data always raises unforeseen concerns.
B.6. Is the Bavarian Infection Protection Act, which was adopted on March 25, 2020, in conformity with the constitution?
On March 25, 2020, the state parliament of the Free State of Bavaria passed a Bavarian Infection Protection Law. The law contains regulations to ensure the functioning of the healthcare system, especially through the procurement of materials and personnel. For example, authorities are empowered to confiscate medical material (respirators, etc.) or even to issue a sales ban. In addition, the possibility of obliging people to provide services, such as retired doctors and nurses to help in the health system, will be regulated.
Does Bavaria have the necessary legislative competence?
The problem with the law is that there is already a federal infection protection law. It is therefore questionable whether the Free State of Bavaria actually has the legislative competence for its own infection protection law. If it did not have legislative competence, the Bavarian infection protection law would be unconstitutional. But because only the Federal Constitutional Court can overrule laws, it is effective for the time being.
The Basic Law stipulates that measures against dangerous or contagious diseases are the subject of competing legislation (Article 74 (1) No. 19 GG). This means that the Länder may only enact laws “as long and to the extent” that the Federation has not (yet) regulated a matter (Article 72 (1) GG). The Federation has made use of its legislative competence through the Federal Infection Control Act, which has just been amended. Bavaria can therefore only make regulations insofar as the matter is not conclusively regulated by it.
The justification of the Bavarian Infection Protection Act also argues that the federal government has not conclusively regulated infection protection, since it has taken measures to prevent the spread of diseases, but none to maintain the functionality of the health care system. This might at best be argued using the justification that the Federal Infection Protection Act is much more concerned with preventing the spread of a disease by means of quarantine, observation or activity bans.
However, the scientific service of the Bundestag recently came to a different conclusion: In an expert opinion made available to the Legal Tribune Online, the lawyers of the Bundestag came to the conclusion that § 5 Abs. 2 Nr. 4 IfSG has a blocking effect with regard to regulations on the supply of the population with medical and sanitary material. The fact that the Federal Government had not regulated this area meant that it had expressed its opposition to such measures. If the opinion of the scientific service were to prevail in proceedings before the Federal Constitutional Court, there would be a danger that the Bavarian Protection against Infection Act would be invalid in large parts.
Thus, already with regard to Bavarian legislative competence, the Bavarian Infection Protection Act stands on a very shaky foundation.
When is the new law applicable?
The Bavarian Infection Protection Act has been in force since March 27 and, due to a change in the legislative procedure, only until December 31, 2020. It only applies in the event of a “health emergency”, i.e. when the spread of a disease seriously jeopardizes the security of supply of the public health system (Article 1 Paragraph 1 BayIfSG). This narrow scope of application should prevent measures being based on the new law in the event of future flu outbreaks, for example. The health emergency must be established by the state government, i.e. the cabinet as a collective body, and it can be ended by the cabinet and by a resolution of the state parliament (Article 1 Paragraph 1 BayIfSG).
What regulations does the law provide for?
Of particular relevance to fundamental rights is the possibility provided by the law of involving people in services in the health care system in accordance with their training – provided that this does not pose a disproportionate threat to their health or physical integrity (Article 6 BayIfSG). In the context of the coronavirus pandemic, it would be conceivable, for example, that retired doctors and nurses could be called upon to assist in the health system. Such service obligations must be measured against Article 12 paragraph 2 GG, which prohibits forced labor, but excludes “general and equal service obligations”. In principle, the present service obligations can fall under this permissible exception. In their concrete application, however, they are constitutionally bound by high justification hurdles. You can find out more about the constitutional admissibility of such a – not really general, and therefore problematic – compulsory service in our text on the constitutionality of compulsory services.
In addition, measures are regulated to ensure the supply of material. For example, authorities will in the future be able to confiscate breathing masks from people or facilities that have a large stock of them. In some cases, these regulations have given rise to fears that authorities could now also confiscate protective clothing intended for personnel at health facilities. Theoretically, “hoarding” private individuals could also be affected, so the regulation will probably have a more symbolic meaning.
For services as well as for confiscations, there is also an obligation to compensate the persons concerned if this has an expropriating effect (Article 7 BayIfSG).
Run-off elections in the Bavarian local elections by postal vote
Finally, in the same legislative procedure, the Municipal and District Election Act was amended and it was regulated that the run-off vote in the Bavarian local elections on March 29, 2020 will be carried out exclusively by postal vote. Postal votes are not unproblematic under constitutional law, because elections must be “secret” and “free” (Article 38 (1) of the Basic Law). It cannot be ensured that everyone has the opportunity to cast their votes unobserved and uninfluenced. The principles of electoral law can never be realized in their pure form and, against the background of the democratic principles pursued by the principles of electoral law, the legislature has a certain leeway in the organization of elections. There is some evidence that the holding of a regular election would currently be associated with disproportionate risks to the health and lives of the population due to the associated risk of spreading the coronavirus. The Bavarian State Parliament must therefore assess the loss of secrecy and freedom of choice associated with a postal vote against postponing the election to an indefinite date.
B.7. Is Germany allowed to close borders in reaction to the coronavirus pandemic?
As in many other European countries, in Germany too, since March 20, only certain border crossing points have been open and borders are strictly controlled – a procedure that is only permitted in exceptional situations in the Schengen Area. However, it is questionable whether border controls can help contain the coronavirus pandemic at all. People seeking protection, in particular, must not be turned away at the board, even in the event of an emergency or disaster.
According to a decision of the Federal Ministry of the Interior (BMI), the federal police is to allow travelers with a valid reason for travelling and without symptoms of illness to pass through the border crossings to Austria, France, Luxembourg, Denmark and Switzerland. The BMI leaves it to the discretion of local officials to decide what are private “valid reasons for travel”. The cross-border movement of goods and travel for work-related reasons, as well as crossing the border to return to an EU home state, are also permitted. These travel restrictions also apply to air and shipping traffic to Austria, Spain, Italy, Luxembourg, Denmark and Switzerland, as well as to long-distance and regional rail traffic.
Unlike the Federal Ministry of the Interior, the EU Commission has defined urgent private reasons for crossing the EU’s external borders: People may enter or leave the country for compelling family reasons and if they are seeking protection. The Federal Police, however, do not seem to follow these guidelines. According to press reports, asylum seekers are currently being rejected across the board. In addition, according to the Federal Police, spouses or custodial children are not permitted to travel for visits.
According to the Schengen Borders Code, temporary border checks may only be introduced if “there is a serious threat to public policy or internal security in a Member State” (Article 25). There must be “exceptional circumstances” and checks may only be a last resort (Article 25(2)). There is also a time limit of no more than 30 days or for the duration of the serious threat, in the case of a threat to the EU as a whole of no more than 6 months.
It is questionable whether border controls are absolutely necessary in the sense of this strict assessment standard. The WHO is reluctant to impose travel restrictions, as they are not usually effective in reducing travel, use up resources needed elsewhere and often tend to exacerbate the negative economic and social consequences of crises. In fact, border controls are currently leading to increased crowds of people and are themselves potentially dangerous. Moreover, even in times of a pandemic, blanket rejection of asylum seekers is not permitted under human rights and EU law, neither at the EU’s external nor at its internal borders. The European Convention on Human Rights makes it clear that an individual assessment must also be made in the event of a declared state of emergency (Article 15 (2) ECHR). Prohibiting spouses and parents from crossing borders also constitutes an encroachment on the protection of the family, which is constitutionally guaranteed by Article 6 of the Basic Law. This is only justified if the restriction would be suitable and necessary to contain the pandemic.
C. Obligations of the state to protect particularly vulnerable population groups
C.1. Which constitutional requirements must be observed when decisions are made on the distribution of insufficient medical resources (“triage”)?
The increase in severe cases of illness caused by the coronavirus will push the German health care system to the limits of its capacity. It is possible that situations will arise in which medical personnel will have to choose which persons will receive the vital intensive care treatment — and thus deny other persons this treatment at the same time (so-called “triage”). A legal regulation, which selection criteria should guide this difficult decision, is still missing. However, seven medical societies have now issued clinical-ethical recommendations. In addition, the German Ethics Council has issued an ad-hoc recommendation.
From a constitutional perspective, it must first be made clear that the Basic Law does not make any concrete specifications as to which decision-making criteria apply. Rather, it corresponds to the principle of the separation of powers that this regulation, which deeply intervenes in the most important fundamental rights of the persons directly affected, is made by the legislature itself. The Basic Law merely states that certain regulatory models are unconstitutional. A statutory regulation, which selection criteria the triage has to follow, would have to be measured against the guarantee of human dignity (Article 1.1 of the Basic Law) and the prohibition of discrimination derived from it (Article 3.3, 1 of the Basic Law).
Which connecting factors for triage are excluded under German constitutional law?
It would obviously be prohibited to select people on the basis of “race” or social status (Article 3.3 of the Basic Law). Although a selection directly based on these characteristics is currently unthinkable, it is nevertheless not pointless to repeat these prohibitions: Structural discrimination of people on the basis of these characteristics can also be proven in Germany in all areas of life. In terms of access to health care, it is also crucial that all those involved critically examine their own, mostly unconscious, patterns of thought and assumptions and, for example, take the described course of illness equally seriously.
Furthermore, decision-making criteria must not discriminate against persons on the basis of characteristics of disability (Article 3.3, 3 of the Basic Law) or their age (Article 3.1 of the Basic Law).Therefore, a provision that would allow selection based directly on the age or disabilities of persons in need of treatment would be clearly unconstitutional. However, regulations which, although not directly based on age or disabilities, in practice affect particularly old or disabled persons are also very problematic. This is the case, for example, if triage is (also) to be based on the predicted remaining life expectancy. Such a criterion naturally disadvantages old people and those with certain pre-existing conditions and disabilities.
However, the criterion of predicted remaining life expectancy is not only susceptible to discrimination, but is also difficult to reconcile with the concept of human dignity of the Basic Law.Human dignity means that every human being is accorded a value that must be respected by the state for his or her own sake. Human dignity thus prohibits legal regulations that declare one human life to be less valuable than another. The legislator must therefore not order the saving of the life of a young person at the price of the life of an old person. In its — not uncontroversial — decision on the Aviation Security Act of 2006, the Federal Constitutional Court expressly stated that the protection of human life is not less valuable because people are doomed to die anyway: “Human life and human dignity enjoy equal constitutional protection regardless of the duration of the physical existence of the individual human being” (BVerfGE 115, 118, marginal no. 132). Giving preference to people who have a longer remaining life expectancy is irreconcilable with this case law. The majority of constitutional law experts therefore assume that remaining life expectancy is not a criterion permissible under the Basic Law (see Prof. Mathias Hong on the constitutional blog and Prof. Till Zimmermann on LTO).
Finally, according to the case law of the Federal Constitutional Court, even a regulation according to which the treatment of a person, once begun, which is vital and still not hopeless, would be discontinued in order to save another person, would not be compatible with human dignity. In its decision on the Aviation Security Act, the Federal Constitutional Court decided that legislators may not order the killing of innocent people on board of a hijacked aircraft, even if this would potentially save the lives of the others on board but also of a larger number of people outside the aircraft, in the event of a terrorist attack (BVerfGE 115, 118). Essentially, the Federal Constitutional Court’s statements thus only refer to legal provisions that would permit the targeted killing of innocent people by active action to save others. This constellation is comparable to the situation in an intensive care unit when the vital medical treatment of a person has already begun, but another person in need of treatment is now admitted, whose treatment is declared by law to have priority for certain considerations. The German Ethics Council has also endorsed this assessment.
If the clinical-ethical recommendations nevertheless also provide for prioritization in this situation, they are thus on a very narrow scale in constitutional terms. If the — once again: not uncontroversial — case law of the Federal Constitutional Court is taken seriously, the legislator is unlikely to issue such a regulation. An individually responsible decision of conscience may follow other principles and may nevertheless be lawful (on the possible criminal consequences for medical personnel, see below). However, abstract-generic guidelines of professional associations should not contain unconstitutional selection criteria, even if it is clear that they are merely recommendations for medical personnel without legal binding effects.
Which constitutionally permissible criteria for triage are being discussed?
There is also little clarity under constitutional law. Therefore, only the state of the current constitutional discussion can be outlined here.
Initially, it seems admissible to exclude from care those people for whom there is no realistic chance of survival even after treatment (“hopelessness”, as the ethical-clinical recommendations also state). The following possibilities are then discussed as possible criteria under constitutional law: Maximizing the number of human lives by the criterion of “probability of survival”, a temporal priority and a purely random principle.
The ethical-clinical recommendation of the medical professional associations and assumedly also of the practice in Switzerland is based on the premise of maximizing the number of human lives to be saved (“rescue efficiency”). It therefore suggests that, among the group of patients facing prioritization decisions, the probabilities of the individuals’ survival of the intensive care treatment should be used as a decision criterion.
The extent to which principles from the decision of the Federal Constitutional Court on the Aviation Security Act can be used for the constitutional assessment of this criterion is difficult and is judged differently. They are not directly transferable, because in this case a legal regulation does not order the killing of a person by active action to save another person, but would only make a decision as to which person must be saved. Nor does the criterion of the probability of survival make any distinction between different human lives, but merely attempts to save as many lives as possible through efficient use of the available capacities (for constitutional admissibility, see Prof. Mathias Hong on the constitutional blog).
This can be countered by the fact that human dignity should also rule out a numerical weighing or offsetting of lives against each other: One human life is not worth less than two. Therefore, so it can be argued, a person with a higher chance of survival is not more worthy of protection than another, just because the number of saved human lives might be increased. Moreover, the criterion of probability of survival also carries the risk of indirect discrimination against people of a higher age or with pre-existing conditions and disabilities to the extent that these affect the chance of survival. In individual cases, this can lead to a situation in which older, previously ill or disabled persons would have poor chances in the competition for the better chances of survival (therefore Prof. Till Zimmermann on LTO is much more critical with regard to constitutional admissibility).
It is therefore also being discussed under constitutional law to create complete equality of opportunity among patients in need of treatment, and for example to give priority to patients according to time and at best exclude those for whom treatment has no chance of success. The result would then be that with such an approach possibly fewer people would survive in terms of numbers. It could also mean that an otherwise healthy thirty-year-old would have to be refused treatment and an eighty-year-old who was previously ill would be given priority. However, there is no trade-off between human life and death, and each individual person has an equal chance of treatment, even if their chances of survival are reduced due to age, disease or disability. For the same reasons, a purely random principle is also conceivable, in its pure form or, if necessary, in addition, if a temporal priority cannot be established.
Do medical personnel make themselves liable to prosecution if they select patients in need of treatment according to inadmissible criteria?
While the state may not legally order certain selection criteria due to its obligation to respect fundamental rights, this evaluation does not say anything about whether medical personnel acting according to these criteria is liable to prosecution.
When it comes to the selection of persons for whom treatment is to be started, i.e. when two equally important duties to save lives collide, then medical personnel do not make themselves liable to prosecution for either homicide or failure to provide assistance. This applies even if this decision is made on the basis of criteria that would be constitutionally inadmissible. For criminal law only requires that the persons providing treatment save one of the two patients, not that their selection also follows the standards that must be applied constitutionally to the actions of the state.
May medical staff interrupt a life-sustaining treatment once started on a person in order to save another person?
The legal assessment is different if the medical treatment of a person has already begun and this person has a concrete chance of survival. If, for example, a person is connected to a respirator and survival is therefore not excluded, then switching off this device in order to save another person’s life is prohibited as active killing. Because human lives are of equal value, a justifiable state of emergency according to § 34 StGB (German Criminal Code) in particular is ruled out (see also Prof. Hilgendorf on LTO). The same conclusions can be drawn from the case law of the Federal Court of Justice in connection with the termination of treatment in constellations of euthanasia (BGH, NJW 2010, 2963). This case law refers to cases in which the will of the patient is established to discontinue medical treatment and die. It is therefore not transferable (see Prof. Reinhard Merkel in the FAZ; but Prof. Elisa Hoven in the FAZ appeal provides a different interpretation).
There have been varying judgments, but it is rather doubtful that the punishability of such acts of homicide may nevertheless exceptionally be canceled, based on the fact that the medical personnel was acting in a situation of so-called “supra-legal emergency” and made an ethically justifiable decision.
It is therefore extremely problematic that the ethical-clinical recommendations suggest triage even when treatment has begun (see clinical-ethical recommendations, p. 6 f.): medical personnel who follow these recommendations expose themselves to a considerable risk of criminal prosecution.
Who is responsible for deciding on the criteria for selection: medical associations, the Bundestag or state parliaments?
It is not only understandable, but also commendable that medical societies are now making recommendations so that colleagues are not left alone with difficult decisions that may arise in the future. However, this is not without constitutional problems. Several arguments speak for the state to be responsible for developing criteria on the basis of which people to be rescued are selected. In so far as human life is decided on within the framework of public services of general interest, there is a fundamental duty to protect the right to life and human dignity (Article 2.2, 1 in conjunction with Article 1.1, 2 of the Basic Law). The state must ensure that decision-making criteria take sufficient account of these fundamental rights. The constitution does not make any clear stipulations in this regard, but leaves the legislature some leeway.
In the absence of specific federal responsibilities and because of the proximity of the subject matter to health care, it is obvious that the state legislature should have the responsibility for positive instructions to hospital staff under Article 70.1 of the Basic Law. However, the Bundestag could change the punishability of medical action by amendments to the Criminal Code and, for example, regulate special justification or excuse reasons for medical personnel if they terminate an initiated treatment with one patient in favor of another within the framework of a “health emergency”.
C.2. 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 coronavirus. Events have had to be cancelled, sports studios and small shops have had to close: All those freelance photographers, events 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.
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 into 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.
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 for ensuring 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.3. What form does help take for people whose right to a dignified existence is acutely threatened?
One possible solution is 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 19 March 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 Jobcentre. On 25 March parliament passed a social protection package that makes it much easier to access social welfare. In the current situation applicants no longer have to lay out their income in detail. Rent payments will also be covered by the Jobcentres even if they exceed the permissible limits.
C.4. 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 guarantees a subsistence minimum which includes adequate housing (see BVerfGE, 9 February 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 24 January 2013, III ZR 98/12).
Due to the coronavirus 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 during coronavirus, on 25 March parliament decided on a temporary moratorium for tenants, electricity and Internet customers. 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.5. 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 assistance, with potentially fatal consequences. The state is obliged to identify such special situations of danger and to provide short-term, creative remedies.
In view of the spread of the novel coronavirus, 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 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 coronavirus in sign language, and the Federal Ministry of Health is publishing information in simple language. Since 17 March 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, or animal or human assistance when visiting a doctor or going hospital. They may also need explanations in simple language in order to be able to give informed consent to a procedure or treatment. In the context of increasingly overburdened health care systems, and especially quarantine measures, this can pose challenges for healthcare providers. 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.6. What can the state do to protect asylum seekers in shared or collective accommodation?
The impact of the coronavirus crisis is particularly severe for asylum-seekers living 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 in these places. The prescribed distance to other people cannot be maintained in collective accommodation. In many refugee accommodations there have already been confirmed cases of infection – a habitant of a refugee shelter in Schweinfurt died of COVID-19 on April 20. The reactions vary depending on the federal state and the operators of the accommodation. In some shelters, infections lead to strict isolation of all residents. Because of the already cramped conditions, this means people are kept in quarantine in small rooms with four people – or are being placed in quarantine areas that are sealed off by police. In other accommodation, the residents continue to move around without restriction despite confirmed infections.
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 backdrop, it is an obvious inconsistency that the federal states are maintaining collective accommodation for refugees in the current form.
In order to fulfil their obligations to protect, the federal states are required to accommodate refugees in a decentralized manner, e.g. empty apartments, hotels or smaller facilities, as far as possible. The Asylum Act stipulates that the obligation to live in a reception facility can be terminated for reasons of public health care (§ 49 Absatz 2 AsylG). In presence of serious infection-specific dangers, the authorities have no discretionary power. This was also the view held by the Leipzig Administrative Court, which on April 22 granted an urgent application for decentralized accommodation by a resident of the reception center in Dölzig. The court found that the rules of distance cannot be observed in the accommodation and that a transfer is therefore possible and also necessary according to § 49 Abs. 2 AsylG. The ruling is an important signal to all state governments to start organizing alternative accommodation facilities without delay.
In the city-state of Bremen and in Bavaria, the refugee councils have already filed criminal charges at the beginning of April against those responsible in the state governments – for violation of the regulations and general decrees on the fight against corona in those states. The operation of the accommodations violates the mandated distance regulations as well as the prohibitions of assembly and gastronomy. The public prosecutor’s office in Bremen discontinued the proceedings on April 20 without any investigations, as it assumes that the residents of an accommodation are part of the same household. Nevertheless, the charges have contributed considerably to increasing public pressure on the state government. Decentralized accommodation is also necessary to ensure that refugees are housed in a humane manner in the event of quarantine or curfew.
According to Paragraph 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 coronavirus 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.7. What about undocumented migrants? What rights do they have during the coronavirus crisis?
For undocumented migrants the coronavirus 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 and 2 of the 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, allowing the virus 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 health vouchers in the current situation. Berlin has taken the pandemic as an opportunity to improve health care for people without health insurance. Since April 14, affected persons can obtain a cost coverage certificate from the clearing house for people without health insurance (Clearingstelle für nicht krankenversicherte Menschen), which entitles them to receive medical treatment from all licensed physicians in Berlin.
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 residence status. The Health Office in turn passes on this data in anonymized form to the state authority and the Robert Koch Institute.
C.8. How does the increased risk of infection in prisons affect the proportionality of imprisonment?
In prison, social distancing is impossible. Shared cells, and communal washrooms and dining rooms promote a rapid spread of the virus. At the same time, the proportion of at risk detainees is particularly high, as many suffer from pre-existing conditions such as HIV or hepatitis. Under these conditions the state has an increased duty to protect detainees. 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 centres 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 fulfil 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.
C.9. What obligations does the state have in view of the expected increase in domestic violence against women and children as a result of the restrictions?
Movement restrictions and school closures, combined with insecurity and existential fears, form a breeding ground for domestic violence. The chairman of the Association of German Criminal Investigators and the Central Information Office of Autonomous Women’s Shelters, among others, warn of a drastic increase in domestic violence. Reports from China, according to which domestic violence is said to have increased threefold in the course of the coronavirus epidemic, support this assessment. Women and children are particularly affected, to whom the state has a special duty of protection.
For children at risk, the current situation is particularly threatening through school closures, which otherwise served as a central protective authority. Katharina Göpel from the Federal Association of Women’s Counselling Centers and Women’s Emergency Hotlines (BFF) points out that it is currently much more difficult for women to get help, as they may have to stay in the same apartment as their violent partner all the time. This applies all the more to persons whose freedom of movement is additionally restricted, such as women and children with disabilities or asylum seekers in collective accommodation.
The state must protect each individual from unlawful attacks by third parties – this also applies within the family or residential communities. This obligation arises from the Basic Law, more precisely from the right to life and physical integrity (Article 2(2)) in conjunction with the guarantee of human dignity (Article 1(1)). The fact that the state must protect children and young people in particular also follows from the Federal Child Protection Act and the UN Convention on the Rights of the Child. In the Istanbul Convention, Germany has committed itself to comprehensive measures to protect women from domestic violence. In addition to effective criminal prosecution, this includes legislative and political measures (Article 7), the provision of adequate financial and human resources (Article 8), support for civil society (Article 9), and precise data collection and analysis (Article 11). Similarly, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in particular General Recommendation No. 19, and the European Convention on Human Rights (ECHR), in particular Articles 2 and 3, oblige Germany to provide effective victim protection.
Even during the coronavirus pandemic, protective facilities for women should remain open and child emergency services should “continue to operate without restriction”, according to Family Minister Franziska Giffey. In addition, she said, women are not fundamentally prevented from leaving the house. But the mere reference to existing structures does not do justice to the state’s duty to protect in view of the expected increase in domestic violence. The existing care structures were already working to capacity before the crisis. In the current situation, the government urgently needs to create a balance from a constitutional point of view – coordinated with experts, careful assessments of the situation and concrete measures. In this respect, the financial support for social services through the coronavirus rescue package seems to be a step in the right direction. In any case, the state must assess the increasing threat to the life and limb of women and children caused by current restrictions.