The policy has acted, after some initial Hesitation, quickly and decisively. It is only in the pause for breath after that, the normative Reflection about what is happening. Also, the state law doctrine of logs from the Home Office to word and discussed the happenings – a multifaceted, occasionally with a little to flashy a bit of criticism, but in any case, with a caution cautionary Tenor.
Without question, the state is challenged legally by the Corona-crisis fundamentals, and without question, the right must be to preserve the rule of law in the crisis of collateral damage. How can be an in-between balance sheet? About the author Sebastian Graf von Kielmansegg Public law, and medicine, teaches law at the University of Kiel. Kielmansegg, Sebastian Graf von Kielmansegg
With the measures you go on thin ice,
First of all: It really is a state of emergency, de facto legally, but not in the formal constitutional sense of the word. The basic law knows no General state of emergency, but only certain types of emergency situations: defence, internal unrest, and the disaster emergency. You may view an epidemic, although perhaps more as a natural disaster, but the Constitution rules relate only to the use of the police and the armed forces – they do not help for the, what it is currently.
The measures to contain the epidemic must move in the framework of the normal constitutional right. This is a test for the policy, but also for the legal system that must allow for reasonable solutions.
it is first of all to the question of whether such massive restrictions of freedom can be allowed. In fact, it is already at the legal basis for all these measures on rather thin ice. The relied on section 28 of the IfSG was not seen tailored to area-wide and week-long restrictions of the entire population. You moved here at the very edge, in the case of bona fide interpretation of the part beyond this standard. The legislature has controls, and § adjusted 28 IfSG already the end of March – amazing way, but so fleeting, that still question marks remain.
Transition to less restrictive strategies have to be found
Such is the rule of law is quite important. Central is the question whether basic legal interventions of this magnitude ever constitutionally justify whether or not you – spoke precision – proportionate. You will need to, given the dramatic consequences that would have a more or less unfettered course of the epidemic for the affected patients, for the health system and ultimately also for society and the economy, answered in the affirmative. Even the initially sought after sharp criticism once dropped power for the analysis of location data from mobile devices is not so definite in character as unconstitutional discard it, as the reflex has happened.
A key guard rail of the constitutional balancing test is not, however, that the dimension of the current restrictions on freedom as a permanent state is conceivable. It can only be as a “state of exception” is justified strictly on the Situation and the current state of knowledge bound. This is, of course, already a commandment of reason. A broad Shutdown of public and economic life is perhaps about a few weeks, at best months, to keep. Then the Transition to the other, must be found less drastic strategies.
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appropriations of the Ministry of health are of concern in General
taken A second critical observation concerns the “crisis” legislation in the urgent procedure, as practiced in the case of the Amendment of the infection protection act and the North Rhine-Westphalian epidemic act was attempted. In the case of a such an approach craft are programmed and conceptual errors.
It may be necessary to quickly put in place legal regulations for the immediate crisis management, in so far as the available legal tools are not sufficient. But it is another thing, at the same time a permanent and far-reaching special to create a regime for future epidemic cases, as, for example, by the introduction of the “epidemic emergency of national significance” in the IfSG is. The need for careful professional, public and parliamentary discussion, which is not under these conditions.
In addition, it is also the refuge to the new regulation, authorizations to view with skepticism. It is a typical reaction to Emergency situations, which present themselves with their special pressure to act as “hour of the Executive”. This has a certain permission. The new appropriations of the Federal Ministry of health for epidemic emergency are taken, but a concern in General.
Undoubtedly, such a plight presents significant regulatory challenges, because of the numerous health legislation can no longer be followed in the current situation adequately. Instead of this surrender entirely to the Regulation in crisis mode, it could be but also the from the defense, a well-known Instrument of the pension legislation makes sense: Parliamentary legislation, the vordenkt already in normal times, the case of a crisis, and then when the outbreak is activated.
Where respiratory protection masks are available, the block Contact dispensable
“Pension” should be the keyword that defines the most important lesson from the COVID19 crisis. The next epidemic plight comes with certainty. If the liberal state of law wants to give as little as possible the freedom of the price to capitulate without the Virus, he should be even better prepared – by the regulator, but especially by the provision or grew up in the possibilities of the resources in the health sector.
Where, for example, respirator masks are enough available, contact block rather expendable. This is, like any disaster, time-consuming and in the daily routine of the priority-setting slightly behind. But the state owes it to its citizens. Where is Coronavirus? Real-time map showing the spread of the disease, FOCUS Online/Wochit lung disease Covid-19: Where is Coronavirus? Real-time map showing the spread of the disease
