Corona and the Law: State of Affairs, Conclusions, and Outlook
Courtesy of attorneys Sebastian Lucenti and Franziska Meyer-Hesselbarth, a careful and evidence-based way of looking at the 'Pandemic™' years shows what's upon us: an epic battle for freedom
For the first part, please refer to the linked content:
All non-English content comes to you in my translation, with emphases [and snarky commentary] added.
The Problem and its Solution: Ending the Self-Restriction of Judicial Review and the Taking of Evidence
In view of the pandemic situation, the administrative courts and the Federal Constitutional Court have set the course in favour of non-evidence-based interventions in fundamental rights. The legal experts speak of the legislator’s ‘scope for assessment and prognosis’ [orig. Einschätzungs- und Prognosespielraum des Gesetz- oder Verordnungsgebers]. In other words: the courts are generally holding back. It becomes critical for the protection of fundamental rights when far-reaching encroachments on fundamental rights are no longer subject to judicial review because, firstly, evidence is no longer required to justify the encroachment and, secondly, the state is granted too much room for manoeuvre. In this case, the judiciary leaves the field almost unrestricted to the executive, which is a blatant violation of the principle of separation of powers and cancels out the fundamental right to effective legal protection against state interference under Article 19 IV of the Basic Law [this means, in plain English, that the judiciary is also subject to the laundry list of infractions on constitutional and other rights].
Individual decisions by the Federal Constitutional Court or the Federal Administrative Court should not be underestimated in terms of their groundbreaking effect on the future actions of legislators and regulators. The less critical scrutiny there is by the courts, the greater the risk that politicians will see this as an invitation to cast further and ever more serious encroachments on fundamental rights in the form of laws and ordinances in the future because it seems politically opportune.
An Independent Determination of the Breadth of Control over the Judiciary
In order to end the vicious cycle of erroneous court decisions, more judges are now needed who, in view of the clear language of the RKI and PEI files, implement their duty to determine the facts by taking evidence and apply existing law [that’s the key point here: lawlessness]. An important first step is to determine, as part of the proportionality test, the respective judicial discretion
for the assessment of the appropriateness and necessity of the interference, and
for the prognosis for the impact of the encroachment on fundamental rights on the legitimate objective pursued on the basis of the knowledge available to the legislator and regulator at the time. However, it is not sufficient to uncritically accept factual assertions made by the state that interferes with fundamental rights. According to the continuing case law of the Federal Constitutional Court, this requires a judicial review of whether
the state’s presumed danger relates to the general public or to individuals, and
use this considerations as the basis from which determination of any such situation is derived. The depth of judicial review to be determined in a specific individual case depends largely on whether the legislator has fulfilled its obligation to properly establish the facts of the case, i.e.,
factual assumptions must be carefully determined or at least confirmed in the course of the judicial review
as soon as reliable empirical data and reliable empirical principles are available, the legislator’s scope for forecasting is reduced to zero
all supporting aspects must be disclosed with sufficient clarity in order to exclude extraneous considerations, and
all accessible sources of knowledge must be exhausted in order to be able to estimate the likely effects of its regulation as reliably as possible.
Or to put it another way: according to constitutional law, there is no such thing as a wide margin of manoeuvre for free, but it must be earned through an efficient and evidence-based method of knowledge procurement, even in a situation fraught with uncertainty. Legislators must not remain in ignorance and uncertainty when they have the opportunity to achieve a better level of knowledge, even if this reveals previous serious omissions and errors. The numerous omissions and mistakes made over the years by the legislative and executive branches in the procurement of necessary data and knowledge did not open up this room for manoeuvre.
A Critical Review of the Usability of Official Information from the RKI and PEI
The courts relied almost exclusively on the official information from the RKI and PEI, which was treated procedurally like a court-commissioned expert opinion, due to the legal assignment of tasks and allegedly reliable reporting data. In this case, however, the official information of the RKI and the persons responsible for it are also subject to the relevant procedural regulations for the rejection of expert witnesses, in particular the rules
for rejection due to concerns of bias (§§406, 41, 42 ZPO) and
due to serious professional deficiencies in the expert opinion (§412 I ZPO)
The RKI protocols provide a plethora of overwhelming points of reference for concerns of bias or lack of scientific independence, such as the following passages:
The state authorities are currently asked to comment on a report that defines the incidence of 35/100,000 inhabitants as a possible threshold value…The provision of indicators is largely rejected from a technical point of view, but these are being strongly demanded by politicians (however, no instructions have been issued in this regard) [so, how does this pressure come about? Tweets, press briefings?]. The incidence mentioned comes from a discussion between BM Braun and BM Spahn. (RKI minutes of 5 May 2020, p. 9)
There was an enquiry from the Federal Ministry of the Interior [BMI] as to why the R value is reported with two decimal places (pseudo-accuracy, possibly only 0.5 steps), and why it is not commented on. Mr. [that would be Gen.] Holtherm communicated to the BMI that this followed an instruction from Mr. Spahn that the RKI should implement.’ (RKI minutes from 06 May 2020, p. 5)
Vaccination of children: Even if STIKO does not recommend vaccination for children, BM Spahn is still planning a vaccination programme. (RKI minutes from 19 May 2021, p. 10)
The new passage caused irritation on the part of the federal states. Such influence on the part of the BMG in RKI documents is unusual. The minister’s authority to issue directives for RKI technical documents is currently being legally scrutinised by L1 [legal dept. of the RKI]. The current assessment of the RKI management is that the recommendations are issued by the RKI in their role of a federal authority and that a ministerial instruction to supplement this recommendation must be complied with, as the BMG has technical supervision over the RKI and, as an institute, the RKI cannot invoke scientific freedom. In this respect, the scientific independence of the RKI from politics is restricted. (RKI minutes of 10 Sept. 2021, p. 6)
1-G rule: this is actually a political decision
Was brought to the Expert Council as a question, arguments in favour of Pres[ident of the RKI] as a member of the Expert Council should be collected here
Meant is e.g. access to restaurants only with booster vaccination (RKI minutes of 29 Dec. 2021, p. 9)The RKI frequently finds itself in the situation of having to justify situations that are of a political nature. These enquiries often also come in via a decree from the BMG, FG36 is heavily burdened in this regard. (RKI minutes of 11 May 2022, p. 9)
And then there are the statements of RKI President Prof. Dr. Schaade in the hearing of evidence before the Osnabrück Administrative Court on 3 Sept. 2024.
The judicial exclusion of an expert due to concerns of bias takes place if facts or circumstances exist which, from the point of view of the objecting party, are reasonably likely to justify mistrust of the expert’s impartiality. The persons responsible for the RKI technical information, who are not only bound by the RKI protocols in the abstract, but also actually bound by ministerial instructions, must therefore be rejected due to concerns of bias. Irrespective of this, the evidential value of the RKI expertise is close to zero in view of such intensive influence.
Information and expert opinions are inadequate above all if they have recognisable deficiencies, for example if they are incomplete, contradictory or otherwise unconvincing, if the expert opinion is based on incorrect factual assumptions. This means that the court must obtain an additional expert opinion.
Conclusion and Outlook
In its decision on the sectoral vaccination obligation to provide evidence under Section 20a IfSG (old version), the Federal Constitutional Court—probably in anticipation of the house of cards collapsing in the medium term—gave the judiciary a back door with the following statements:
Nevertheless, a regulation that initially conforms to the constitution can later become unconstitutional with effect for the future if the legislator’s original assumptions no longer hold because they are shaken by subsequent findings or developments.
However, the exposed and leaked RKI protocols show that a large part of the standards created in the years 2020 to 2023 that restrict freedom were tainted with the stigma of unconstitutionality from the outset, because legislators and the executive already had the necessary knowledge in many areas or did not make conscientious use of the necessary knowledge options. The former President of the Federal Constitutional Court, Prof. Dr. Hans-Jürgen Papier, criticised the judicial review of the coronavirus protection measures in a lecture on 18 Sept. 2023 with a particular focus on the Federal Constitutional Court as a ‘major denial of legal protection by the judiciary’. In view of the content of the published RKI protocols and ever new revelations about the extent of the insubstantiality of the supposedly scientifically justified state measures, what would his judgement be today?
In the meantime, the balance of damage caused vs avoided in almost all areas of life can be described as gigantic without exaggeration, with the corona crisis and its aftermath increasingly threatening to turn into a state and justice crisis. Considering the vehemence with which the judiciary is still pursuing fines for non-compliance with non-reasonable measures (compulsory masks outdoors) or prison sentences for false health certificates (mask and vaccination certificates), and the refusal of the military’s duty to tolerate vaccinations against Covid-19, but on the other hand accepts a large number of security-related violations of the law by the executive, state institutions and institutions subject to reporting requirements for years without sanction, there is an unacceptable imbalance in the rule of law.
In her article ‘Has the law been suspended?’ [orig. Ist das Recht suspendiert worden?] published in 2023, legal scholar Prof. Dr. Gierhake hits the nail on the head with her concluding statement. She states that although the rule of law has hardly shown any visible signs of damage on the surface during the coronavirus crisis, it has suffered fundamental damage underneath. It cannot be overlooked that a judiciary that was all too quick to follow suit played a major role in this by simulating constitutional proceedings instead of genuinely investigating the facts.
Insofar as the legal scholar Prof. Dr. Gärditz and author of the textbook ‘Gesundheitswissen aus Behördenhand’ (Health knowledge from the authorities) published in 2022 complains about the ‘yawning banality’ of the RKI protocols in an FAZ article from 17 Aug. 2024 and believes that the courts have had no choice but to rely on the expertise of the RKI as a reference, a careful analysis and legal classification shows the exact opposite.
The German judiciary of all jurisdictions has not only rendered millions of adults, children, and adolescents as well as commercial enterprises in this country defenceless against evidence-free excessive infection control measures through its corona jurisprudence, but also itself. Some of these measures are not only manifestly unconstitutional, but have also reached the inhumane threshold of legal injustice—as shown by the 2G regulations and the sectoral vaccination obligation to provide evidence under Section 20a IfSG (old version).
Considering the manipulative mechanisms used against the population and the courts to create a broad willingness to follow the corona measures, the adoption of a general statutory vaccination obligation against Covid-19 intended by almost all parliamentary groups and the legal options already explored in December 2021 to enforce them by means of official administrative enforcement (including the use of physical force), the German judiciary must ask itself in a broad public debate whether and when it will give up its unmistakable willingness to follow the corona measures. administrative enforcement (including the use of physical force), the German judiciary must ask itself in a broad public debate whether and when it would have given up its obvious willingness to follow suit and put an end to the evidence-free attacks on the population if the general vaccination obligation had not narrowly failed in the Bundestag. In a recent article, the President of the Administrative Court of Düsseldorf and Vice President of the Constitutional Court for the State of North Rhine-Westphalia—Prof. Dr. Heusch—therefore rightly calls on the courts involved in reviewing the pandemic-related restrictions on fundamental rights to take a self-critical look back at their own case law and examine whether they have adequately protected fundamental rights.
However, this alone is no longer enough. The judiciary of the Federal Republic of Germany is currently at a crossroads with its control of the millions of cases of state interference in fundamental and human rights—to the detriment of children and young people, the disabled and the sick, those giving birth and the dying. Not the Federal Constitutional Court, but the Administrative Court in Osnabrück has—despite its own previous decisions to the contrary—made the difficult-to-reverse start of a long-awaited legal reappraisal of the coronavirus crisis after finally being able to take note of the RKI protocols.
Nothing now stands in the way of a seriously new, objective and robustly fact-based judicial review of standards by the Federal Constitutional Court. The competent 1st Senate of the court now has it in its hands to prove the stability of the entire Federal Constitutional Court as a bulwark of fundamental and human rights through an appropriately self-critical approach and the necessary reassessment of its previous decisions. For even if the Osnabrück Administrative Court has already visibly demystified the credibility of the RKI and the credibility of its statements for all other courts through its exemplary taking of evidence, it is to be hoped that the Federal Constitutional Court will not lag behind it in admitting and correcting its own mistakes.
This step is indispensable if the Federal Constitutional Court is to remain the central reference for reliably fact-based constitutional protection in the legal management of the coronavirus crisis. Regardless of this, the ball is now also in the court of the many lower courts. They must be aware that the rule of law depends on keeping the public’s essential trust in their ability to function alive with each of their decisions.
Bottom Lines
There isn’t much to add here: the task before us is obvious, and perhaps we’ve marched too far into the direction of tyranny already.
Please click here for an annotated and referenced version of the entire (German) text, incl. some 80 footnotes.
We still need to try to reverse course, if only for the sake of future generations being able to live in something approximating freedom.
There is, of course, a different route to take, but it is one of tyranny, darkness, and, in the final analysis, death.
Do not be tempted by the demons to continued complacency.
If you’ve ever wondered what certain periods of human history might have been like—now you know. There’s no need for a time machine.
Draw a line.
Stand your ground.
And do not waver.
Hear hear complacency is complicity! We must hold the line and stand our ground.