"Health is not a Super basic right"

"Health is not a super basic right"
by Niko Härting

[This article published on Dec 20, 2020 is translated from the German on the Internet, https://www.nachdenkseiten.de/?p=68202.]


"The courts are currently failing to protect fundamental rights." So says lawyer Niko Härting in a NachDenkSeiten interview. Härting, who is a practicing lawyer but also a professor at the Berlin School of Economics and Law, stresses in the interview that nighttime curfews are "unconstitutional" and criticizes the role of the Federal Constitutional Court, which has "let governments get away with just about everything so far." By Marcus Klöckner

Mr. Härting, would you have thought it possible before Corona that the state would interfere with our fundamental rights so extensively and for so long?

No, before Corona no lawyer could have imagined this. In law school, we learned about fundamental rights in a completely different way. We learned that only Parliament (and not a state government) can enact "substantial" restrictions. And we learned that it is not enough for proportionality that measures can reduce infection rates.

When it comes to fundamental rights and infection control, it often looks like there is no togetherness. How do you see that?

One does not exclude the other. And infection control also protects fundamental rights - health and life. It's a matter of balancing freedom and security. This is an age-old, difficult issue, which we also know from anti-terrorism legislation, for example, which - like infection control - is intended to protect life.

Suppose you have a person in front of you who is concerned about her health and has no problem at all with the restriction of her fundamental rights. What would you say to make her understand why respect for fundamental rights is important even in a pandemic?

Health is not a "super fundamental right," any more than "security" is a "super fundamental right." We all have the right to demand from those in power that there be a functioning health care system and that offices and agencies not sit idle during the pandemic. But no one has the right to demand that the entire society, social life and all fellow human beings completely subordinate themselves to the goal of protecting against infection.

Does it actually worry you as a private person or as a federal citizen when you see how readily many citizens themselves accept such far-reaching encroachments on their fundamental rights, as is the case with curfew restrictions or curfews?

Yes, I was somewhat stunned at how quietly the first lockdown was implemented in the spring. If you think back, however, you can certainly find parallels. After September 11, 2001, there was hardly any resistance to the drastic anti-terror laws that were passed all over the world. Sabine Leutheusser-Schnarrenberger says - loosely based on Rainer Werner Fassbinder: "Fear eats up freedom.

You are a lawyer. You also have clients who are suing against the measures. Please give us an insight into your work. What are the cases about?

We were successful when restaurateurs throughout Germany filed lawsuits against curfews in the fall. There were also successes in May/June when relaxations were passed, from which there were strange exceptions: solariums that were initially not allowed to open, or chiropodists. In the partial lockdown in November, we filed emergency applications for restaurateurs, gyms, beauty salons and theaters, which failed across the board. They didn't want to understand why hardware stores and car salons were allowed to continue opening, but their own businesses were not.

What is the current state of play in the proceedings?

Having seen administrative and constitutional courts approve all measures in November, we are mostly discouraging litigation at the moment.

I'm sure you've been watching the case law. In your view, how are the courts behaving?

The courts are currently failing to protect fundamental rights. That hurts, and I hope that this is only a snapshot. Unfortunately, the Federal Constitutional Court is playing a particularly inglorious role. Karlsruhe has so far let governments get away with just about everything and - like large parts of politics - stares solely at numbers. If measures can lower numbers, this is already enough for the Federal Constitutional Court to reject urgent applications.

Please let us turn to the curfews. In many places, people are no longer allowed on the streets in the evening and at night - with a few exceptions. How do you classify such a blanket curfew from a legal point of view?

Who would catch an infection on an empty street at night? Nighttime curfews cannot be convincingly justified on the grounds of infection control; they are unconstitutional. Unfortunately, the courts also see this differently so far. The Bavarian Constitutional Court recently approved curfews.

Meanwhile, demonstrations against the measures have also been banned. Is that still comprehensible to you from a legal point of view?

This, too, is largely due to the Federal Constitutional Court, which ruled in August that the hurdles are low when it comes to banning demonstrations for reasons of infection control. What is highly problematic about this is that occasionally the impression is created that it is less about protection against infection than about not wanting to see any "lateral thinkers" on the streets of the big cities. When it comes to climate protection or demonstrations against the eviction of a squat, masks and distance are not observed quite so rigorously.

What has to change with regard to the handling of our fundamental rights from a legal, but also from a political point of view?

The federal government's Corona policy is not without alternatives, and it has by no means always been successful, as the unsuccessful "partial lockdown" has shown. Nor is there "science" that agrees on necessary measures; there are also many critical voices among medical experts. The federal government's Corona policy is not without alternatives, and i and the Drosten/Lauterbach team is not the measure of all things. I would like to see a more open and critical discussion and greater sensitivity to the social, economic and psychological consequences of the measures. For a minority of the population, Corona means unemployment, existential angst and depression. The majority takes far too little account of this. Too often, people who are sitting in a warm home office with a secure income decide on measures whose existential consequences affect them only marginally. This divides society and marginalizes people.