German district court finds lockdown imposed by state government “unconstitutional” and “catastrophically wrong”

A German district court found the lockdown imposed by the government of the central state of Thuringia to be unconstitutional, calling it “the most comprehensive and far-reaching restrictions on fundamental rights in the history of the Federal Republic”.

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A man who hosted a birthday party with seven friends was fined €200 ($243) during the COVID-19 first wave under the strict lockdown rules imposed by the government of the central state of Thuringia. 

The man contested the fine and on January 11, the district court invalidated the man’s fine, saying the lockdown imposed by the local government of Thuringia was unconstitutional. 

The district court said that the lockdown imposed on citizens of Thuringia represented “the most comprehensive and far-reaching restrictions on fundamental rights in the history of the Federal Republic”. 

Never before in the history of the Federal Republic of Germany have economic losses of this magnitude been caused by a government decision. As far as the assessment of the damage to the private sector and private households is concerned, it must be taken into account that the losses have been or will be compensated in part by state benefits. The government benefits thus reduce the economic damage suffered by private economic agents. However, they do not reduce the overall economic damage, because they burden public budgets and thus ultimately the taxpayers. These costs must not be allowed to fall by the wayside when calculating the disadvantages of the lockdown, the judge wrote.

The court also wrote that the lockdown was a disproportionate measure and an attack on the “foundations of our society”. 

The judge found that there were no sufficient legal grounds to impose such restrictions. In his judgment, he noted the absence of an “epidemic situation of national importance”, citing the virus’ reproduction number that had dropped to less than 1, and the health system which was not at risk of collapsing, as reported by the UK Human Rights blog

At no time did a concrete danger of the overloading of the health system by a “wave” of COVID-19 patients occur. As can be seen from the DIVI Intensive Care Register, which was newly established on March 17, 2020, at least 40% of intensive care beds in Germany were vacant throughout March and April. In Thuringia, 378 intensive care beds were reported as occupied on April 3 2020, 36 of which were occupied by COVID- 19 patients. This was compared to 417 free beds. On April 16, two days before the decree was issued, 501 intensive care beds were reported as occupied, 56 of them with COVID-19 patients. This contrasted with 528 free beds [ …]

The maximum number of COVID-19 patients reported in Thuringia in the spring was 63 (April 28), and the number of COVID-19 patients was at no time anywhere near a range which threatened an overload of the health care system.

[…] At the same time, the judge dealt in detail with the collateral damage of the lockdown decisions, which is now becoming increasingly apparent:

(1) loss of profits/profits of businesses/tradesmen/freelancers, which are direct consequences of the restrictions on liberty addressed to them

(2) Profit losses/losses of businesses/artisans/freelancers that are indirect consequences of the lockdown measures (e.g., profit losses of suppliers of directly affected businesses; profit losses resulting from supply chain disruptions that resulted in, e.g., lost production; profit losses resulting from travel restrictions)

(3) Wage and salary losses resulting from short-time work or unemployment.

(4) Bankruptcies/destruction of livelihoods

(5) Consequential costs of bankruptcies/destructions of livelihoods.

In his ruling, the judge said lockdowns likely caused more deaths than COVID: 

Based on what has been said, there can be no doubt that the number of deaths attributable to the lockdown policy measures alone exceeds the number of deaths prevented by the lockdown many times over. For this reason alone, the standards to be assessed here do not satisfy the proportionality requirement. Added to this are the direct and indirect restrictions on freedom, the gigantic financial damage, the immense damage to health and the non-material damage. The word “disproportionate” is too colourless to even hint at the dimensions of what is happening. The lockdown policy pursued by the state government in the spring (and now again), of which the general ban on contact was (and is) an essential component, is a catastrophically wrong political decision with dramatic consequences for almost all areas of people’s lives, for society, for the state and for the countries of the Global South.

The district court ruling is not legally binding and will be brought to appeal by Thuringia’s regional public prosecutor’s office. 

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