Covidistan Annals XXXVII: Some Mandates are Revoked as 'New Cases' Decline--While the Supreme Court Ends the Separation of Powers

Sad news for those who kinda like them: in its first two rulings, the Constitutional Court effectively sides with the gov't on the 'lockdown for the unvaxxed' and wrecks the constitution

Last Saturday, most recently renewed mandates were rescinded once again, and revisiting ‘old’ news with two week’s distance is quite instructive, dare I say? Let’s briefly review these matters before diving, however briefly, into what will most likely happen next.

On 7 April, notoriously Covid-hawkish paper Der Standard did us all a favour and summarised the expiring mandates for its readers. In his piece, David Krutzler almost celebrated a ‘shifting trend’ with respect to Omicron, even though he struggled to understand how the end of freely available tests might factor into this situation. After all, Mr. Krutzler noted that ‘new cases’ stood at 16,479, while they had been well over 25K a week earlier (31 March), a number arrived at ‘with an unlimited number of free available tests’.

Furthermore, the extra-hawkish Vienna city-state government maintained that they’d extend all the mandates for as long as possible, i.e., until Easter (16 April). Why, one might ask? Well, according to Mr. Krutzler’s piece, regular (!) hospital beds were occupied by ‘Covid patients’ at an unprecedented rate, i.e., never during the ‘pandemic’ were there more hospitalised individuals (693) in Vienna than in early April 2022; yet, ICUs were emptying out, with a mere 58 patients there.

Yet, the most important ‘admission’ is buried at the bottom of Mr. Krutzler’s piece who noted, in a very cavalier way, the following:

By the way, testing is now mainly done only in the east of Austria: almost 90% of the PCR tests registered throughout Austria on Thursday [7 April] came from Vienna and Lower Austria.

We already mentioned, way back in early February, that Covidistan boasted some of the world’s highest—and absolutely insane—levels of PCR testing, with ‘Austria’ back then (as of 7 Feb.) testing 81-82 people per 100,000 inhabitants daily. Checking back with OWID now, this activity has receded considerably now and is down to 18-19 tests per 100,000 inhabitants:

Revocation of Mandates Coincides with New Rules for Covid Passports

We spoke frequently about the absolute absurdity of Covid Passports, in particular as the injections neither prevent transmission nor infection. This is both an established fact as well as known by the powers-that-be, as exemplified by the civil-military comprehensive advisory body (known as GECKO) whose minutes—dated 18 Feb. 2022—hold (p. 7, my emphasis):

According to all scientific results to date, neither one or more infections nor one of the vaccines reliably protects any individual against infection and transmission of the virus in the long term, even after repeated administration. The reduction in the probability of reinfection for vaccination cohorts shown in studies is relatively high at the beginning and declines sharply over time. In addition, the individual variants that have appeared so far show different degrees of immune evasion, and it can be assumed that the further evolution of the virus will continue, and it can be assumed that the future evolution of Sars-CoV-2 will be aimed at existing immunity from whatever source.

[line break added] This was well illustrated by the change from Delta to Omicron. So far, a reduction in transmission through immune protection against infection has only occurred temporarily within the individual waves, e.g., in the Delta wave. [Immune protection via the injections] is then lost again due to waning vaccine efficacy and variant change. Accordingly, it seems very unlikely that transmission-relevant immunity can be achieved in the long run, that transmission-relevant immunity is achievable, and that collective protection [i.e., herd immunity] could actually succeed in eliminating the infection. Elimination of the virus, on the other hand, would only be possible with the development of vaccines that act primarily through antibodies against highly conserved structures of the Sars-CoV-2 and that this protection then lasts for several years.

Couple of issues to comment on:

These documents reflect the consensus of all players and actors, i.e., they are what everyone could agree-upon. As such, they constitute the bar, so to speak, against which to ‘measure’ all other utterances and publications.

So, back in mid-February 2022, the government wrote about immune evasion that specifically targets pre-existing ‘immunity from whatever source’, i.e., mainly from the injections. (I do think I’m among the very few who actually read these documents, so, it’s not too difficult to see why these aspects never played a role in the public sphere…)

The most important piece, though, I’d argue, is buried in the lower part of the second paragraph, for GECKO holds that ‘it seems very unlikely… that transmission-relevant immunity is achievable’, which is one way of saying: THE INJECTIONS DON’T AFFECT TRANSMISSION, which, of course, completely destroys the case for Covid Passports.

The last sentences further reflect this meeting with reality: different biologicals may be needed to actually achieve this aim, i.e., they don’t exist right now. Any first-term law student should be able to cobble together an argument in court that demolishes both access-delimiting mandates and the abomination masquerading as the Covid-19 injection mandate in particular.

Speaking of the judiciary, let’s focus our attention on these proceedings for a moment, shall we?

Constitutional Court OK’s (1st) ‘Lockdown for the Unvaccinated’ by Ending the Separation of Powers

The Austrian Constitutional Court (Verfassungsgerichtshof) is currently working overtime to deal with a flurry of mandate-related filings. As of today, two of these cases have been adjudicated by now, as the court’s website on ‘select rulings’ informs the casual reader.

On 3 March 2022, the Court decided against a motion that held that test requirements for entry into ‘night-time businesses’ (Nachtgastronomie, i.e., kitchen services after 10 p.m., which also includes night clubs and the like). At the core of the motion was the plaintiff’s claim that PCR-only tests would be inappropriate as they did nothing to reduce the risk of transmission or infection. Citing former Health Minister Mückstein’s answers to the Court’s questions, the supremes held that entry restrictions had been ‘appropriate’ because the plaintiff had based his or her claims on the equal protection under the law clauses, both deriving from domestic and EU law. Hence, the Court dismissed the motion, in particular citing that the plaintiff’s counter-argument (he or she wished to enter nightclubs with AG rapid tests) would not rise to the same analytical standards as a laboratory-confirmed PCR test.

The much bigger of these early cases, though, the one focused on the ‘lockdown for the unvaccinated’, was decided on 17 March 2022. At its heart was a plaintiff who (p. 17) claimed never to have contracted Covid-19 and who claimed to be denied access due to her inability to obtain a ‘valid’ Covid Passport as she refused to receive the EUA injections.

Note that the motion was filed before 24 Nov. 2022, and in it the plaintiff argued (pp. 19-20) that the Covid-related legislation (§6 Covid-19-MG) did not include any authorisation on part of the government or the magistrates to deny anyone without a ‘valid’ Covid Passport access to facilities other than one’s home, workplace, and businesses of daily necessities, such as grocery stores and pharmacies. This argument was further buttressed by the fact that the afore-mention section of the law did not envision any measurable conditions for any kind of ‘epidemiologically dangerous situation’, hence in the absence of a yardstick, the ‘lockdown for the unvaccinated’ must be deemed illegal.

Furthermore (p. 20), Mückstein’s answer (see above) holds—and this is now part of the judicial review, i.e., in the public record—that

with regard to the risk of further transmission of Covid-19 [sic, it should be Sars-Cov-2] between tested and vaccinated persons, there was no difference. In fact, non-immunised persons who had only recently been PCR-tested, despite the current [then, i.e., in late Nov. 2022] high 7-day incidence, are very unlikely to be infectious.

In their response, the Health Ministry argued (p. 24) that it would be ‘unclear which version of the executive ordinances [Verordnungen]’ the plaintiff objected to before concluding that

Even if [the clause in question] § 2 5. Covid-19-SchuMaV was repealed, the more specific initial regulation in the form of a ban on meetings would remain in force. The alleged unlawfulness or unconstitutionality could therefore not be eliminated by the mere repeal of § 2 5. COVID-19-SchuMaV.

Let that sink in: implicitly, the Health Minister agreed with the possible unlawfulness and unconstitutionality of his own executive order while, at the same time, stating that it wouldn’t matter anyways as this particular regulation would be but one of many such—of course, logically, also unlawful and unconstitutional—mandates.

I’ll spare you the rest of these inanities, which incl. a further claim by the Health Minister that the plaintiff didn’t ‘spell out in necessary detail how she would have desired to frequent those facilities possibly off limits to her during the time period the mandates were in force’ (pp. 24-25).

There is but one other issue I’ll bring up: back in late November 2021, I informed you about a AGES (the Austrian regulatory body co-authorising these injectionable products) published a study on vaccine efficacy that held that there was

no reliable data on the severity of Covid-19, severity of the Covid-19 disease, and no information about hospitalisation or intensive care requirements for Covid-19 patients. Therefore, the efficacy of the vaccines in preventing severe and lethal severe courses and lethal outcome of SARS-CoV2 infection CANNOT be calculated.

The same faulty study was trotted out time and again to bolster the government’s case for the injection mandate, something I wrote about again in late December 2021.

Now—guess what: the Health Ministry now (pp. 28-29 of the second court ruling cited above) again trotted out this study to bolster its argument. This is particularly absurd given the above-cited later answers by Mr. Mückstein that, arguably, superseded this particularly faulty study (which, by the way, discusses data all the way until week 35 of 2021, i.e., before Delta petered out and that has nothing whatsoever to do with anything related to Omicron).

Bottom line: the government’s arguments are very much disingenuous, to say the least.

The Court’s considerations—found on pp. 31-56—more or less completely side with the government in all instances. Citing Mückstein’s reply to the Court’s questions frequently, and while admitting that some aspects (minor details) of the plaintiff may hold merit—if the ordinance would still be in place—the justices deny the plaintiff’s motion.

The legislator [sic, in the original on p. 56 as well as elsewhere this reads Gesetzgeber, e.g., the executive branch, on which see below] did not act inappropriately…when the (exclusive) proof of non-infectivity was a negative test result during the time considered here.

The End of the Second Austrian Republic

This ruling is extremely problematic, to say the least, as—in my reading—the Court all but excuses the government’s overreach by claiming that was that at the time.

In addition, the government isn’t the legislative branch. There’s a reason we try to separate governmental powers—parliament, whatever its flaws, is the legislative branch. The government gets to execute whatever parliament has decided, and not vice versa.

What this ruling does is, in effect, taking a wrecking ball and demolishing the separation of powers. The executive doesn’t get to make up shit and claim it’s law.

This is a very dangerous precedent, but it’s very much in line with what I wrote back in November 2021 in a long essay I subtitled ‘an obituary for the Austrian Republic’.

Sidenote: if you care about the rule of law, you may wish to read up on one of my earliest essays on ‘the decay of the legal profession’. The above argument is so absurd that it boggles my mind.