by Alex Thomson, Eastern ApproachesTuesday, 14th April 2020
A large number of well-established doctors and lawyers in the German-speaking countries have questioned the constitutionality of their governments’ stringent confinement measures, which are commonly being referred to by the English loan-word der Shutdown (as there is no precedent for what to call the situation in German). These measures have begun to be challenged openly on the streets of Berlin. The medical and legal dissidents number in the dozens. None, however, has paid such a price for that freedom of speech as the German medical lawyer Beate Bahner, who has been committed to a psychiatric institution for publicly disagreeing with the measures and policies followed by the German government.
No right to demonstrate
Beate Bahner, in the southern German state of Baden-Württemberg, has a 25-year career and has won three cases before the Federal Constitutional Court (German Supreme Court) in the domain of unlawful infringements of the right to practice one’s profession. She has written five books on medical law, most recently an analysis of the 2016 federal act to tackle corruption in the healthcare system.
On Friday 3 April 2020, Ms Bahner issued a press release decrying the German government’s Coronavirus measures as “flagrantly unconstitutional, infringing to an unprecedented extent many of the fundamental rights of German citizens”. The statement argued that the small minority of the public that was at risk of serious harm in the event of contracting Covid–19 could be far more suitably protected by means of targeted measures based on the principle of adult responsibility for safeguarding one’s own health.
In particular, these measures are not justified by the Infection Prevention Act, which was hurriedly amended just a few days ago. Long-term restrictions on leaving home and meeting others, based on high-death-rate modelled scenarios (which fail to take account of actual critical expert opinions), and the complete shutdown of businesses and shops with no proof that they pose any risk of infection, are thoroughly unlawful.
Noting that the Federal Ministry of Health had failed so far to supply protective equipment to medics and care workers and to conduct enough random tests to establish the actual rate of infection in the population, Ms Bahner went on in her press release to predict that the shutdown would have “devastating consequences for society, the economy, democracy and above all human health”, and indicated her readiness to take the matter to the Federal Constitutional Court, since the lockdown represented a grave violation of the constitutional principle of proportionate measures and an abandonment by the state of its duty to guarantee the liberty and health of its citizens.
Ms Bahner followed up that press release with a nineteen-page legal analysis published on 7 April entitled Why the shutdown is unconstitutional and the greatest legal scandal in the post-1940s history of Germany. The headings of the document are as follows:
1. The Coronavirus Regulations in the State of Baden-Württemberg —
citizens’ responsibilities and demands made on them;
lack of state competence to issue the regulations;
curtailment of practically all fundamental rights and freedoms;
the need to nullify all Coronavirus regulations with immediate effect
2. The Infection Prevention Act forms no legal basis for the shutdown —
intent and purpose of the Act;
notifiable diseases and evidence of pathogens
3. Epidemic containment measures —
those restricted to persons actually ill or suspected of being bearers;
those applying only marginally to healthy persons;
the administrative law precedent from the measles ruling;
the unlawfulness of a blanket shutdown of institutions and businesses;
shutdown constitutes a severe and unconstitutional impingement of the freedom to practice one’s profession
4. The Act is meant to ensure people assume responsibility for their own health —
spread of Covid–19 by droplets;
following the Chancellor’s guidance;
every citizen’s right to immunisation;
quarantines are supposed to confine the sick, not the healthy
5. The local state Coronavirus Regulations flagrantly breach the Basic Law —
state governments have disregarded the federal government’s lawful regulation;
the shutdown is the greatest legal scandal in the history of post-War Germany;
criminal offences by the state government and police;
the ban on demonstrations has suspended the right to resist;
fines and detentions are unlawful
After these substantive sections, Ms Bahner closed her document with three brief appeals:
An appeal to the Chancellor and all heads of government to end the tyranny at once
A call for a nationwide demonstration at 3 pm on Easter Saturday
The oaths of all lawyers and judges bind us to safeguard the rule of law
It was the second of these appeals, to demonstrate against “coronoia” (Coronavirus paranoia), that landed Ms Bahner in trouble. In full, it read:
I hereby invite all 83 million of you across the nation to gather and demonstrate peacefully at 3 pm on Easter Saturday:
Coronoia 2020 — [Tyranny] never again. We rise up today!
In accordance with §14.1 of the Assembly Act, please give the competent authority prior notification of your intent to demonstrate.