Protect the country or individual freedoms

Fundamental rights in the shadow of Corona
Security against freedom

The Constitutional Court currently rates the right to life higher than, for example, the right to move freely.

utah778; HSS; IStock

These particularly protected rights include, for example, freedom of expression (Art. 5 GG), freedom of assembly (Art. 8 GG) and freedom of association (Art. 9 GG), which protect the core of our democracy. Ownership is guaranteed (Art. 14 GG). There is protection against state interference (right to appeal to the courts, Article 19, Paragraph 4 of the Basic Law) and surveillance (inviolability of postal and letter secrecy, Article 10 of the Basic Law). The basic rights further enable the free development of the personality (Art. 2 GG), freedom of movement (Art. 11 GG) or the free choice of job and occupation (Art. 12 GG). At the same time, the Basic Law protects physical integrity (Art. 2 GG) and - very importantly - human dignity (Art. 1 GG).

In addition to the “eternity guarantee”, the “essence theory” applies to these rights (Art. 19 (2) GG). According to this, the essence of a fundamental right, i.e. its core message, must in no case be compromised.

Significant interventions

The state measures against the corona virus result in considerable interference with numerous basic rights. These are the most extensive restrictions in German history since 1945. In order to contain the pandemic, slow down the spread and thus maintain efficient medical care, the general freedom of action (Article 2, Paragraph 1 of the Basic Law) has been restricted, for example by the ban on seeing our grandparents or parents if we are not living in the same household. We are also no longer allowed to see, visit or invite our friends and acquaintances. Without a “valid reason” we are no longer allowed to leave the house when and how we want. This restricts freedom of movement (Article 11, Paragraph 1 of the Basic Law), which actually allows all Germans to move freely within the federal territory.

The freedom of occupation (Article 12, Paragraph 1 of the Basic Law) grants freedom of choice and exercise of a profession. Every owner who currently has to close his boutique, restaurant, shop, bookstore is restricted in his freedom of occupation. Not being allowed to work in the company any longer represents an interference with this basic right (at the same time in Articles 2 and 11 of the Basic Law). With the decision that church services will no longer take place, freedom of belief (Article 4, Paragraph 1 of the Basic Law) is impaired. Gatherings are currently also forbidden, including demonstrations - the freedom of assembly (Art. 8 GG) is thus restricted as one of the very important freedoms to safeguard our democracy.

On what basis do these state interventions in our fundamental rights take place?

Even without Corona, there are of course restrictions on basic rights. Because in a community, which is a state, the completely free, unrestricted use of fundamental rights by each individual would mean that another's fundamental rights could in turn be impaired. Ultimately, individual people's goals differ. That is why restrictions are imperative, even without a pandemic.

However, these restrictions are only permitted within strictly defined limits so that fundamental rights cannot actually be overridden. However, such restrictions must not affect the core message of a fundamental right. In addition, every restriction must be proportionate, that is, pursue the right goal with the right means. The intensity of the intervention must therefore not be higher than the benefit to be achieved with it.

Three types of barriers for encroaching on fundamental rights

Three types of barriers regulate which restrictions are permitted and when:

  1. Constitutional barrierswhich exist when a direct barrier is anchored in the fundamental rights text. There is such a limit, for example, in Article 2, Paragraph 1 of the Basic Law: Everyone can freely develop his or her personality, as long as he does not violate the rights of others.
  2. Then there would be the constitutional barriers. These are the barriers that result from the system of the Basic Law, in which equal rights stand side by side. Whenever one fundamental right competes with another, a decision must be made on a case-by-case basis as to how far the fundamental rights involved mutually affect one another. The fundamental rights are therefore in a tense relationship. Currently, for example, there is a tension between the rights of freedom and physical integrity.
  3. There is also Legal barriersaccording to which some basic rights can be restricted by law. An example of this is the Assembly Act (Article 8, Paragraph 2 of the Basic Law), according to which assemblies in the open air can be restricted by a law. In the text of the article in the Basic Law it is explicitly stated that a legal restriction is possible under certain circumstances. Of course, every restriction presupposes a formally and materially lawful law - that is, a law that has a lawful regulatory character and was passed in a lawful process. Unlawful laws cannot restrict fundamental rights. In addition, such a law may not only regulate an individual case, but must apply in general, such as the current Bavarian ordinance on exit restrictions.

What is happening right now is serious but allowed

As already mentioned, some basic rights can be restricted by a law. One such law is currently the Infection Protection Act (ISfG). The purpose of this law is to prevent communicable diseases in humans, to detect infections at an early stage and to prevent them from spreading. So exactly what is currently needed. The ISfG makes far-reaching regulations on what the competent authorities are allowed to do in the event of a pandemic such as the spread of the coronavirus. And that is a lot: for example, according to Section 16 of the ISfG, the authorities can restrict the fundamental right to the inviolability of the home (Article 13 (1) of the Basic Law) for certain cases. Even the fundamental rights of freedom of the person (Article 2, Paragraph 2, Sentence 2, Basic Law), freedom of movement (Article 11, Paragraph 1, Basic Law) and freedom of assembly (Article 8, Basic Law) can be restricted in this way. This is exactly what is happening right now and is also allowed. (Section 17 ISfG Paragraph 7).

A question of the right balance

Ultimately, there are individual freedoms and numerous other basic rights on the one hand, and the right to life and physical integrity on the other. It is understandable that the latter has the greater weight in acute crises. For example, the Bavarian Constitutional Court, without weighing up the fundamental rights against each other, recently decided in an urgent procedure that the exit restrictions imposed by the Free State by ordinance are lawful. That is the regulation, which, inter alia, through the exit restrictions, clearly interferes with the right to freedom and other fundamental rights of every individual.

"In view of the paramount importance of the life and health of those who may be endangered, the reasons against repealing the challenged regulation outweigh the rest."

The Constitutional Court comes to this conclusion because exit restrictions serve the purpose of restricting social contacts and thus slowing down the further spread of the coronavirus. Otherwise an overload of the health system and many deaths can be expected. However, it cannot be ruled out that the measures taken by the state government will be declared unconstitutional after all.

The Federal Constitutional Court has also checked the legality of the Bavarian Ordinance and its restrictions in an urgent procedure. It attaches more importance to the protection of health and life than to the exercise of personal freedom:

"According to this, the consequences of the attacked protective measures appear serious, but not unreasonable to the extent required. It does not seem unacceptable to postpone them temporarily in order to enable the greatest possible protection of health and life, which the state is fundamentally obliged to under the constitution Compared to the dangers to life and limb, the restrictions on personal freedom are less important. It should also be taken into account that the regulations are limited in time, provide for many exceptions with regard to exit restrictions and, in the punishment of violations in individual cases, are subject to individual discretion of particular weight is to be taken into account. "

Because the state government is aware of the scope of its decisions and its influence on the strongly protected rights of every individual, it has installed a "Council of Three Fundamental Rights Protection". The task of this advisory body is to support the state government in finding the best possible balance between, on the one hand, effective protection against corona infection and, on the other hand, the lowest possible restrictions on the population's freedom.

Our deputy chairwoman, the former Protestant regional bishop Susanne Breit-Keßler and former presidents of two higher regional courts belong to this council. The council meets regularly and exchanges information with the state government. You can read an interview with Susanne Breit-Keßler here.

In the end, we can only hope that all encroachments on our fundamental rights will be a thing of the past as soon as possible. And the hope that everyone will now appreciate the basic rights even more.

Author: Thomas Reiner