From Karlsruhe's castle district, Stephan Harbarth looks at the pandemic and politicians' efforts to contain it. The President of the Federal Constitutional Court joins via video from a meeting room, behind him on the wall are heavy volumes of previous court decisions.
In an interview, Harbarth reveals what he thinks of the Corona Rounds of the Minister Presidents with the German Chancellor holds.
We are experiencing the most massive encroachments on fundamental rights in the history of the Federal Republic of Germany. Why does the Federal Constitutional Court not intervene?
Stephan Harbarth: The Federal Court of Appeal will only take action if it is called upon to do so. It decides not according to which concept for dealing with the pandemic seems most appropriate to it, but according to the standard of compatibility with the Basic Law. In doing so, it applies the same criteria it has developed over the past decades. It therefore cancels some measures, but not others. The measures taken not only deeply interfere with fundamental rights, they also serve to protect very important fundamental rights, namely the fundamental rights to life and physical integrity. Incidentally, the Federal Constitutional Court receives not only constitutional complaints that are directed against the measures taken, but also those that demand more far-reaching restrictions on fundamental rights.
What goes too far for you?
For example, the Federal Constitutional Court has overturned general bans on religious services and demonstrations. Therefore, although these are currently taking place in a different way than before the pandemic, such as keeping their distance and covering their mouths and noses, they are taking place.
You do not see an undermining of the rule of law?
This pandemic is a stress test for democracy and the rule of law in all liberal orders, including in Germany. But the fight against the coronavirus is taking place within the bounds of the law. The judiciary is fully fulfilling its task. I don't think much of alarmist swan songs about the constitutional state.
Is it proportionate to shut down entire sectors of the economy for months at a time??
It is not possible to give a blanket answer to the question of which sectors of the economy have to accept restrictions under which conditions and for how long. In addition to the legitimate and weighty interests of the self-employed, this depends in particular on the risks of the infection event. Much about the spread, danger and long-term consequences of the virus has not yet been conclusively clarified. At the moment, for example, there is discussion that the British virus variant, which is currently spreading rapidly in Germany, could be significantly more contagious and dangerous for children than previous virus variants. In such a situation of great uncertainty, the policy-maker's scope for decision tends to be greater than in the case of a simple and straightforward ie. The courts examine whether policymakers arrived at their assessments in a comprehensible manner – and whether the various fundamental rights were appropriately balanced: on the one hand, freedom of occupation, for example, and on the other, the right to life and physical integrity. The question of whether it was proportionate in all economic sectors will occupy the courts for years to come.
Is there a time limit for the lockdown?
The longer such actions last, the stricter the requirements for justifying them. However, even at an advanced stage of a pandemic, politicians must not ignore the fundamental rights to life and physical integrity. It will therefore depend in particular on the respective risk situation, i.e. also on the progress of the vaccination campaign and the risks of mutants.
A milder remedy would be effective digital contact tracing. Is it data protection that makes it so difficult for our country to do this??
Data protection has a high priority. But it is not exempt from being weighed up against conflicting constitutional rights. In any case, the Basic Law does not give unrestricted priority to data protection over the right to life and physical integrity.
So are the Germans overdoing it with data protection??
It is not the task of the Federal Constitutional Court to judge this outside of pending proceedings.
How great is the loss of trust that politics has suffered with the Corona management – most recently with the back and forth with Easter rest?
All liberal societies face colossal challenges in the pandemic, and of course every mistake is one too many. But when decisions have to be made under time prere and uncertainty, there is always a risk of error. At the same time, one should not ignore the fact that those responsible have to make their decisions with today's knowledge, but that the evaluation of these decisions often takes place a few weeks later on the basis of a completely different level of knowledge. In retrospect, it may seem like a mistake to do something that could not really have been done better in the actual decision-making situation. I remain confident, however, that our community will ultimately overcome the pandemic and regain lost trust.
Is a video conference of federal and state government leaders the right place to set essential course in the pandemic?
The essential decisions in the democracy of the Basic Law belong in the parliaments. However, the need for a rapid response to new developments also requires room for maneuver on the part of governments. If responsibilities are divided between the federal government and the states, there is no way around a coordinating body when looking at things from a real-life perspective. However, the powers of parliaments must not be curtailed as a result.
The reality is different. The Bundestag debates decisions that the chancellor and the prime ministers have already made.
If a parliamentary decision is required to implement what the chancellor and prime ministers have discussed, then the measure only becomes effective with the parliamentary decision.
Does federalism make the fight against Sars-CoV-2 more difficult??
France does not know federalism and has come through the crisis worse than Germany with its centralized approach. Even here, everything would not automatically have become better in the past decades if every detailed decision for the Black Forest, the Ruhr region or the Baltic coast had been made in Berlin. At the same time, there may be constellations in which a uniform nationwide approach may make more sense than federal diversity. Ultimately, the Basic Law only provides a framework for this, within which the legislature can opt for more or less federalism.
If essential decisions belong in the parliaments – why is Health Minister Spahn then allowed to decide by decree on the order of vaccinations?
In my opinion, this question will still occupy many courts and also the Federal Constitutional Court. We experience that vaccines are scarce and that new scientific findings emerge from week to week. This requires flexibility. But, of course, the principle that essential decisions must be made by parliament also applies here. Whether the right path was found in this interaction is ultimately a matter for the courts to decide.
Should vaccinated people get their liberties back?
It is not about the return of fundamental rights. Everyone has the fundamental rights guaranteed in the Basic Law – in the pandemic as well as before the pandemic and after the pandemic. However, various fundamental rights, such as freedom of assembly, the right to attend school, freedom of occupation, or the right to life and physical integrity, collide in the pandemic in a way that we have never known before. It is therefore a matter of striking an appropriate balance between the fundamental rights involved. In assessing the fundamental rights implications of vaccinations, it is likely to be relevant whether a vaccination only protects against one's own illness or also reliably protects against the virus being passed on to others.
Vaccinated people can therefore only hope for normality if they can no longer infect others?
If a vaccinated person cannot infect anyone, the risk of infection posed by him or her should be judged differently under fundamental rights than if he or she is still infectious and can only no longer fall ill himself or herself.
Resistance to Corona management is also showing up on the streets, and it's dominated by conspiracy theorists and right-wing extremists. Does this worry you?
Demonstrations are an expression of a functioning democracy. But civil rights must also be handled responsibly. If in a pandemic the observance of distance rules or the wearing of a mouth-nose-covering is demanded also on a demonstration, then this is not per se inadmissible. And those who demonstrate should be careful what slogans they run after. We do not live in a dictatorship, but in a free and democratic constitutional state. One should be aware of this good fortune even and especially in difficult times.
Misconduct by politicians can increase public anger. How do you assess the so-called mask affair, in which members of the Bundestag are alleged to have received several million euros in commission for brokering Corona protective masks??
The president of the German Bundestag had clear words on the matter. There is nothing to add.
Bundestag President Schauble called this behavior "simply indecent". Does German politics have a corruption problem?
The German Bundestag has met the challenges posed to it for over 70 years. He will also succeed in this matter.
How to imagine the Karlsruhe court operating in pandemic mode? Do you also work in a home office?
The federal court of justice works without restrictions. Our employees, as well as the judges, are showing great commitment in this difficult situation. Some work can be done from home, some requires court attendance.
What do you think about digital hearings of the Federal Constitutional Court?
Oral hearings and pronouncements of judgement can only take place at the moment if general hygiene standards are maintained. We will therefore resort to larger premises in the coming months if necessary. Digital hearings of the Federal Constitutional Court are not currently planned.