Published: 23 March 2020, 12:01 | By: Till Bayer
Since the weekend, a “ban on entering public places” has also been in force in Jena. On what legal basis is such a curfew in any way possible in Germany?
First, one has to distinguish between a real curfew, which completely prohibits people from leaving their homes without a valid reason, a prohibition of public gatherings and contact bans. As Germany is a federal state, in different regions of Germany different rules apply. All these measures are currently based on Section 28 of the Infection Protection Act (§ 28 Infektionsschutzgesetz, IfSG).
According to Section 28(1) Sentence 2 IfSG, gatherings and political assemblies can be forbidden in order to fight infectious diseases. In addition, according to Section 28(1) Sentence 1, the authorities may take the “necessary measures”. However, such a “general clause” cannot legitimise a serious encroachment on fundamental rights such as a restriction on the freedom to move. According to the theory of legislative reservation (“Wesentlichkeitstheorie”) of the Federal Constitutional Court, essential decisions of the state, which intrude in people’s liberty, must be adopted by parliament through formal law. The more severely the fundamental rights of citizens are restricted, the higher are the requirements for the substantive precision of a parliamentary statute. Therefore, I consider the curfew imposed in the town of Mitterteich (Bavaria), which did not provide for any exception allowing people to leave their houses alone, to be illegal. The Infection Protection Act has to be amended in order to take such drastic measures (for more on this, see Klafki/Kießling, Verfassungsblog). Furthermore, every action by the state must be proportionate. Even the legislator may only permit measures which are suitable, necessary (= no equally suitable, less severe means available) and appropriate, taking into account the fundamental rights concerned, in order to achieve a legitimate objective. In view of the fact that even virologists consider it to be quite safe to leave the home alone or with people from one’s own household, it is appropriate in the case of general curfews to doubt whether they are at all suitable for dealing with the dangers arising from infectious diseases.
In contrast, the “ban on entering public places” that applies in Jena explicitly allows people to enter public places alone, in twos, with other members of one’s household or with pets. It is therefore not a curfew, but rather a “contact ban”. Section 28(1) Sentence 2 IfSG allows a ban of “gatherings of a larger number of people”. It is doubtful, whether the ban to meet more than one other person, which is not part of one’s household, can be based on this provision, but at least such a contact ban – unlike the general curfew in Mitterteich – is capable of slowing down the spread of the virus and could therefore be held to be proportionate.
And what about other legal regulations, such as emergency provisions? Do they enable a general curfew?
Other laws do not permit any general curfew or contact ban either. The constitution does not provide for an emergency clause that would allow emergency ordinances by the government. Special powers are only available in the case of defence or if the free democratic basic order is threatened. However, neither of these provisions apply in the case of the coronavirus pandemic.
I believe, against the background of our country’s history, that it is good that our constitution does not contain any far-reaching emergency clauses. Natural disasters and epidemics are not a reason to suspend liberal democracy and the constitutional state. Emergency provisions can all too easliy be abused by authoritarian politicians in order to establish dictatorships. Also, the past weeks show, that parliament still is capable of acting fast. Several economic aid packages (see for details Klafki/Kießling, Verfassungsblog) and a reform of the IfSG were adopted in record speed in recent weeks.
Anyone who leaves their home in Jena without a valid reason faces fines and other sanctions. How severe can the sanctions be?
In Jena people can still go for a walk or do sports together with members of their own household, according to the current ruling of the city (Allgemeinverfügung). Thus, people do not have to worry when they leave the house. Only gatherings with other people are banned. Failure to comply may result in up to 2 years’ imprisonment or a fine, under Section 75(1) No. 1 of the Protection Against Infection Act (IfSG) (§ 75 Abs. 1 Nr. 1 IfSG). If the violation of the city’s ruling leads to the further spread of the disease, this can be punished with up to 5 years imprisonment or a fine, according to Section 75(3) of the lfSG (§ 75 Abs. 3 IfSG).
Different rules apply, however, if a person comes from a risk area. The city of Jena has decreed – in a dubious manner – that all nations outside Germany, as well as the Länder Bavaria, Baden-Württemberg and Hamburg, are risk areas. According to the current general ruling, all peaple coming to Jena from these risk areas must self-isolate at home for 14 days. A violation of this ruling can lead to a fine of up to 25,000 euros, according to Section 73(1) No. 6 of the lfSG (§ 73 Abs. 1a Nr. 6 IfSG). If a person spreads the disease further as a result, he or she can face a prison sentence of up to 5 years or a fine, according to Section 75 of the lfSG (§ 75 IfSG).
Can the army be mobilised to monitor curfews or contact bans?
Pursuant to Section 35(2) of the German Constitution, a federal state can request support from the Federal Border Police and the Federal Armed Forces. Yet, the Armed Forces are rather involved in preparing medical support measures in the form of field hospitals, than overseeing curfews or contact bans. I think it wouldn’t be advisable to let the Army stroll the streets to control citizens. After all, we must take care not to become a “fascistic hygiene state” during this pandemic (see Heinig, VerfassungsblogDE).
Many measures that have been taken in recent days have been issued by the federal states and municipalities: the closure of schools, restaurants, cafés and shops, and now the restrictions on people leaving their homes. Is it not essential for such measures to be implemented nationwide and that they should be uniform and binding?
That would certainly make sense, because viruses do not stop at the borders of federal states. Pursuant to Sections 83 and 84 of the constitution, however, the federal states are responsible for enforcing the Infection Protection Act. Therefore, the Federal Government couldn’t impose any measures in the beginning of the pandemic. The Federal Government and the federal states are currently cooperating closely. They discuss measures together in the Ministerial Conference of the Federal States, but this is done on a voluntary basis by the federal states. Measures based on the Infection Protection Act, such as school closures and contact bans, cannot be imposed nationwide.
In the course of the reform of the Infection Protection Act last week, the Federal Ministry of Health now has far-reaching powers to issue orders to ensure medical care throughout Germany. In the first draft of the reform law, it was foreseen, that the Federal Government should be able to issue instructions to the states on their health measures in national epidemic emergencies. However, the federal states prevented this threatening to veto the law through the Bundesrat, the second chamber of parliament. The Federal Government can therefore still only issue recommendations to the states with regard to the control measures.
How useful do you find curfews?
I think that contact bans and bans of public gatherings are useful. In contrast, forbidding people from going outside, alone or with other members of their household, is pointless and – because it is not suitable for countering the threat – I also think it is illegal. Instead of increasingly restricting people’s freedom of movement, it would make sense to consider banning work in open-space offices. Pathogens spread faster in enclosed spaces than outdoors in the fresh air.
That raises the question of how the term curfew is actually defined. Can I walk the dog, play with the children on the grass outside my home? How are such matters organised in practice?
Because there are no curfews in current legislation, you will not find any definition of the term in legal documents. At present, the general rulings issued by the federal states, administrative districts and independent cities all provide for their own catalogues of exceptions to the curfews or contact bans. In Bavaria, the catalogue states, among other things, that people can go outside with pets if necessary. All people may also go shopping or go to work. Jogging and going for walks are also permitted under the general ruling. In Jena, no justification is necessary to leave home, as long as you are not quarantined and as long as you keep your distance to others. Taken together, all these general rulings in the different German states, municipalities and cities have a great impact on the civil liberties of the individual. It is also not always easy for people to find the provisions that apply to them. They are all published on the official websites of the respective municipality, city or state, but not everywhere translations are available. This is very unsettling – it is hard for ordinary people to distinguish what is allowed and what is prohibited. In my view, a uniform nationwide approach would be preferable.
What does the situation look like when you make an international comparison? Are legal regulations also lacking in other countries?
I am not familiar with all the legal systems of Europe in relation to this very special legal field. There has been a very interesting online-symposium on the Verfassungsblog though, where the different approaches of many countries in the fight against Corona are presented. Regarding the allocation of competences, other federal states are in a better position than Germany in my opinion. Switzerland for example has a very modern “Epidemic Act”, which provides for stronger federal competences in the case of an epidemic. Austria quickly enacted the “Covid-19 Act”, which provided for supplementary powers to deal with this special pandemic. Based onthis act, a curfew was decided. Such legislation could also be implemented at short notice in Germany.
Do you see the lack of a federal law as a legal basis for curfews as an omission? Or was it just impossible to predict an event such as the pandemic?
In my opinion, at least the question of competence – for example whether to introduce a federal coordination competence – could have been considered earlier. However, it was hard to imagine the magnitude of this pandemic crisis. And just a few months ago, hardly anyone would have thought that one day we would be discussing curfews in Germany. But in the current situation, we must act with a sense of proportion. Political actionism is not appropriate. Any interference in citizens’ civil rights must be proportionate – even during a crisis. We must become aware of the fact that there will be a time after corona. If we still want to be living in a democracy when that time comes, we should deal very carefully with terms such as “state of emergency” or slogans such as “necessity knows no law”.