Criticism of the Federal Constitutional Court – “The overall picture is shocking”

Niko Härting has been working as a lawyer since 1993. In 2012 he was appointed honorary professor at the University of Economics and Law, where he has been a lecturer since 1991. Härting represented members of the Free Voters party in the federal emergency brake proceedings before the First Sentat of the Federal Constitutional Court.

Mr. Härting, last week the First Senate of the Federal Constitutional Court, chaired by Court President Stephan Harbarth, introduced high hurdles for access to the highest German court. According to media reports, a so-called 2G plus plus regulation applied at a public hearing. So only people who had not only been vaccinated or recovered were admitted, they also had to show an expensive PCR test. What does that say about the current situation in Karlsruhe?

Perhaps one must first see that the judges at the constitutional court are only human. And among these eight people in the First Senate, there seems to be an anxiety that is probably not shared in this form by the majority of the country’s citizens. In Karlsruhe, people seem very convinced that the Sars-Cov-2 virus is extremely dangerous. And one must assume that this point of view will flow into the decisions of the court.

Perhaps you have to add at this point that it is precisely this First Senate that is responsible for the many corona lawsuits that are pending in Karlsruhe.

I agree. And if you in this Senate in particular see yourself protected from the risk of infection by a double-stitched PCR test, then you can guess why the Constitutional Court has ruled the way it has just ruled in the past.

So would you speak of a signal effect with regard to the entry requirements?

I don’t know if that’s the right word. But from my point of view it would of course be a devastating signal if one were to move on to excluding unvaccinated legal representatives and parties from the judiciary. Something like that would certainly not be in the interests of the mothers and fathers of the Basic Law. Fortunately, however, the President of the Frankfurt Higher Regional Court has already commented on the process in a genteel but critical way. In an article in the Legal Tribune Online he said that this should only be an outlier and should not be transferred to court operations in Germany. Because courts, so the argument goes, are part of the basic service. So it would be a sensitive signal from the rule of law if this basic service were to be restricted now.

Especially since the principle of the public applies before the Federal Constitutional Court. Is that still the case if you have to be vaccinated in the future and also have to spend at least 60 euros for a PCR test?

The legal basis is pretty unclear. This is also pointed out by the President of the Frankfurt Higher Regional Court in his article. In any case, I have my doubts whether this can be reconciled with the Courts Constitution Act, which also applies to the Federal Constitutional Court and which precisely this public stipulates. But the whole thing fits in with the already difficult picture that the Federal Constitutional Court is giving in the current Corona crisis.

You yourself recently had relevant experience with the First Senate under Stephan Harbarth in the judgment on the federal emergency brake, in which you represented members of the “Free Voters” party. In your opinion, what protection can citizens currently expect from this Senate?

None. I have to say it so clearly. Because the judgment on the federal emergency brake is not singular. Since April 2020, the court has dismissed everything that it put on the table, with the exception of two decisions, in which the plaintiffs were at least partially right. In no single decision did it even come close to showing a red line that showed how far corona measures can go. In addition, in a case from August 2020, in which the issue of freedom of assembly was concerned, the court wrote a kind of instructions for use for assembly authorities with which these demonstrations can be restricted or even prohibited. If you take the big picture, it’s staggering. Many practicing lawyers would never have imagined that the Federal Constitutional Court would let the citizens down in such a way in these times.

However, those who primarily derive a right to protection from the basic rights feel very much confirmed by the First Senate. And yet fundamental rights are also rights of defense against the state; an issue that seems to have increasingly disappeared from the debate. In your opinion, has this shift already influenced the case law before Corona?

This is an interesting question. I hesitate a little whether one can already speak of a tendency in the case law of the court. You can certainly see certain parallels in the climate judgment. However, there seems to be a tendency not only in Karlsruhe according to which fundamental rights are no longer interpreted as a border against the state, but as an obligation of the state to intervene in a protective manner. A lot has turned upside down. And that is an amazing development.

How do you explain that?

This is a trend that affects society as a whole. And the Federal Constitutional Court cannot free itself from this either. There is a development after which one has great confidence in the state. The state is no longer perceived as a threat to the freedom of its citizens, but rather a protective authority. I think that’s been the case for a good ten years. But that will be reversed again. Ultimately, these are aspects of the zeitgeist. And zeitgeist is changeable.

Currently, however, it has changed so much that even the constitutional lawyer Volker Boehmer-Neßler recently spoke of the fact that the judgment on the federal emergency brake and the spirit behind it horrified him.

One can certainly argue about the result of the decision. But what really shakes me is the quality of the argument. In the core passages of the judgment there are entire paragraphs that are simply not understandable. From a legal point of view, this judgment is a real low point.

Doesn’t the strange harmony between executive and judiciary – and maybe even the parliaments here – have to do with the fact that all powers are currently relying on the same advisors, or perhaps have to fall back on them?

The list of experts that the Federal Constitutional Court drew up during the deliberations on the federal emergency brake was indeed a sad chapter. Actually, one has only asked for an expert opinion for whom it was clear in advance what this would look like. There was no one who was against the line of government.

Shortly after the verdict, the debate about compulsory vaccination intensified again. Do you think that the verdict ultimately had an impact on the political arena, where we are now ready to cross more red lines?

I tend not to perceive it that way. Three weeks ago, you might still have the impression that a general compulsory vaccination could now come in a fast-track process. But now you can hear more voices pointing out that this still has to be discussed and weighed up in the Bundestag. In the new federal government, too, it does not seem to me that there has yet been a clear definition. So I don’t see any acceleration.

Do you think universal vaccination will come to an end?

I was never convinced that such a compulsory vaccination could be unconstitutional per se. The reasoning was often foolish in this regard: On the one hand, the compulsory vaccination was ruled out at an early stage, on the other hand, with 2G, it was served through the cold kitchen, so to speak. That was very contradictory from the start. I think, however, that the topic cannot be discussed conclusively as long as one has not agreed on what exactly is meant by it. For example, if you want to raise a compulsory corona vaccination using the measles vaccination as an example, then you would have to say that not much should change. The measles vaccination is sanctioned by fines, but above all by being banned from entering the premises. And we have actually had the latter at Corona for a long time. There are still far too many unanswered detailed questions to be able to assess whether a general vaccination requirement will ultimately be constitutional or not.

Ralf Hanselle asked the questions.

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