11/17/2020 Sabina E. Sorger
On November 18 th , 2020, the German Bundestag [note: in the US equivalent to the Congress] will vote on the “Draft of the Third Law for the Protection of the Population in the Event of an Epidemic Situation of National Significance” ( Printed Paper 1923944 ) after the third reading. The introduction to the new draft law reads: “The progressive spread of the coronavirus SARS-CoV-2 made it clear that further regulations and measures are needed to protect public health and to cope with the effects on the health care system”.
However, as stated in the Rubikon, an independent German online news magazine, article “Spahn – dictator for life” [note: Spahn is the Federal Minister of Health], dated 11/06/2020, the draft law contains “no new findings, no new facts, but a gloomily claimed alleged ‘spread’ makes any and all hardly specified ‘regulations’ necessary, without mentioning their time limitation”.
Rather, this Civil Protection Act is intended to counteract the fact that courts have repeatedly overturned the illegal corona measures since March 2020. For example, the compulsory wearing of masks outdoors in the city of Düsseldorf or various accommodation bans in various federal states were recently revoked by the courts. With this “3rd Corona Act”, the Parliament is now to be involved, because, as jurist Volker Boehme-Nessler notes, the corona measures are also “constitutionally and democratically unacceptable”, since the Bundestag was not involved in the current decisions at all. Boehme-Nessler continues: “The Constitution says quite clearly: the hard interventions, the essential decisions, are a matter for Parliament.” These would have to be debated controversially in Parliament, and then a majority would have to decide.
The “tricky plan that the GroKo [note: literally the Great Coalition between the two Major Parties CDU/CSU and SPD] wants to push through before the end of the lockdown” ( as quoted in the German newspaper “Welt ”) has met with massive criticism from various advocates of the Constitution. Some even compare it to Hitler’s “Enabling Act” of 1933. At the forefront of the critics are the ‘Lawyers for Enlightenment’. On their homepage they describe themselves as “a group of independent lawyers who have networked in order to help in the different fields of law in the clarification of the alleged pandemic and to find legal answers to the questions that arise”. Their list of attorneys currently contains more than 120 lawyers from various fields of law.
Further it says on their page:
“Lawyers for Enlightenment sound the alarm about the amendments of the IfSG [note: short for “Infektionsschutzgesetz”, meaning “Infection Protection Act”]. The previous Infection Protection Act has explicitly and unmistakably stipulated that only sick people, suspects of illness and those suspected of infection may be exposed to state measures to combat infection that are associated with impairment of fundamental rights. Nevertheless, the Federal and State Governments have directed measures that violate fundamental rights primarily against the healthy overall population. This is the most serious violation of the law and the Constitution in the history of the Federal Republic of Germany!”
In an extensive Open Letter , written at the beginning of November 2020, they address all responsible politicians, members of parliament, fellow lawyers, judges, public prosecutors, media, teachers, parents, physicians and all people. In this letter, they point out, among other things, why they already classify the “epidemic of national importance’ as unconstitutional, due to a lack of scientific justification and consideration, as stated in §5 IfSG in March 2020”. Furthermore, they remind that “the principle of the rule of law according to Article 20 (3) of the Basic Law and the principle of proportionality anchored therein” commit the State – and “thus also the Bundestag as legislator – to take only such measures to protect the health of the population that are at all suitable to achieve the intended purpose. In addition, the least burdensome measures must be taken under several suitable means (principle of necessity). Above all, the burdens caused by these measures must be in reasonable proportion to the purposes pursued, i.e. they must be reasonable. In addition, the principle of the rule of law and the right to human dignity enshrined in Article 1 of the Basic Law require a complete, factual and correct account of the occurrence of infection. However, none of this is happening. Rather, we have been hearing and reading every day for months about rising infection figures and the fact that we are once again on the verge of a catastrophe. In this context, the population is kept in the dark about very important facts and findings, both from the World Health Organization and from many German and international medical doctors and scientists, even though this knowledge would help to calm people down and ease the situation”.
On the homepage of the Lawyers for Enlightenment there is also a link to an interview made by the Swiss independent Bittel TV with Beate Bahner , a lawyer and specialist in medical law, in which she comments in detail on the draft of the New Civil Protection Act: she clearly states that this is the “mortal blow to the free democratic Basic Order, to the Basic Law and to our Freedom and Basic Human Rights”. Because it offends against the proportionality, the Basic Human Rights of the Freedom of assembly, Freedom of profession, health, religious practice and the family. If this law is anchored, Beate Bahner warns, we would have to learn to deal with injustice and to sufferrestrictions of freedom to an unprecedented extent since the beginning of the Federal Republic.
In particular, the newly added “§ 28a Special protective measures to combat the coronavirus SARS-CoV-2” and the changes to § 36 are to be mentioned in this context, which will be discussed in more detail below.
§ 28a Special protective measures literally states: (1) Necessary protective measures within the meaning of § 28 section 1 sentence 1 may, in the context of combating the coronavirus SARS CoV-2, be, in addition to those referred to in § 28 section 1 sentences 1 and 2, in particular, for the duration of the determination by the German Bundestag of an epidemic situation of national importance pursuant to § 5 section 1 sentence 1:
1. exit or contact restrictions in private as well as in public areas,
2. arrangement of a distancing requirement in public places,
3. obligation to wear a mouth and nose cover (mask obligation),
4. prohibiting or restricting the operation of facilities that are part of cultural or recreational activities,
5. prohibition or restriction of leisure, cultural and similar events,
6. prohibition or restriction of sporting events,
7. closure of joint facilities within the meaning of § 33 or similar facilities and the imposition of
conditions for the continuation of their operation,
8. prohibition or restriction of overnight accommodation,
9. prohibition of operations or trade or closure of retail or wholesale trade or restrictions and requirements for operations, trade, retail and wholesale,
10. prohibition or imposition of conditions for the holding of events,
11. prohibition, to the extent that this is absolutely necessary, or imposition of conditions for
the holding of assemblies or religious meetings,
12. prohibition of the sale or consumption of alcohol in certain public places or at certain times,
13. prohibiting or restricting the operation of catering establishments,
14. order the processing of contact data of customers, guests or event participants in order to be able to trace and interrupt possible chains of infection after the occurrence of an infection case,
15. travel restrictions.
The order of the protective measures must in turn be proportionate.
(2) The protective measures should be aligned to threshold values regionally related to the level of districts, counties or independent cities, taking into account the respective occurrence of infection, as far as the occurrence of infection within a country is not regionally overlapping or similar. Serious protective measures are particularly appropriate if a threshold value of more than 50 new infections per 100,000 inhabitants within seven days is exceeded. Strongly restrictive protective measures may be considered in particular if a threshold value of more than 35 new infections per 100,000 inhabitants within seven days is exceeded. Below a threshold value of 35 new infections per 100,000 inhabitants within seven days, simple protective measures are particularly worth considering. Before a threshold value is exceeded, appropriate measures are indicated in particular if the infection dynamics make it likely that the threshold value will be exceeded in the foreseeable future. If a nationwide threshold value of more than 50 new infections per 100,000 inhabitants is exceeded within seven days, nationwide uniform severe measures are to be aimed for. If a nationwide threshold of more than 50 new infections per 100,000 inhabitants is exceeded within seven days, nationwide uniform severe measures are to be striven for. The incidences occurring in the districts, counties or cities are determined and published weekly by the Robert Koch Institute [note: abbreviation: RKI, equivalent to the CDC in the US] to determine the relevant threshold value.
(3) Necessary protective measures within the meaning of section 1 and of § 28 section 1 sentences 1 and 2, and §§ 29 to 31 may be ordered individually or cumulatively to the extent and for as long as necessary to prevent the spread of the coronavirus SARS-CoV-2. Further protective measures required to combat the coronavirus SARS-CoV-2 shall remain unaffected.”
In their open letter, the Lawyers for Enlightenment clearly state their position on these paragraphs: “The classification as a ‘risk area’ in Germany and abroad is based solely on the so-called ‘incidence value of 50 positive tests per 100,000 persons’. This is completely arbitrary: Because 50/100,000 (in the meantime without any medical evidence even reduced to 35/100,000) corresponds extrapolatedly to what the Federal Ministry of Health describes on its homepage as a ‘rare disease’:
‘In the European Union a disease is considered rare, if no more than 5 of 10,000 humans in the European Union are affected by it.’
As explained above, a positive test does not mean that the patient has a disease. Only 5 % of all positively tested persons suffer from – mostly mild – symptoms. This is two to three people out of 100,000! Despite this ‘rarity value’, people have to accept the most serious limitations. All this is a blatant violation of the principle of proportionality and the ban on arbitrariness.
Regarding the change of §36, the independent journalist Boris Reitschuster – since October 2020 also official journalist in the Federal Press Conference and whose website recorded 1.8 million readers and 3.2 hits in October alone – states in his article “Corona: Surveillance through the back door; New Epidemic Bill with many pitfalls” published on 11/05/2020 on the basis of quotes from the bill:
“The regulations on travel that were previously provided for in § 5 section 2 IfSG will be merged into § 36 IfSG in the event of an epidemic situation of national significance and adapted, among other things, so that in particular a digital entry registration can be ordered after a stay in risk areas, in order to enable better surveillance by the responsible authorities. The term risk area is legally defined. At the RKI, new types of surveillance [sic! English term] instruments such as virological and syndromic surveillance are planned. In contrast, the previously unimplemented obligation to report a SARS-CoV-2 infection by name will be abandoned in favor of positive reports by name.”
Reitschuster continues to summarise in his article:
“It is remarkable that the English term ‘surveillance’ is used here in a German law – obviously to disguise what it stands for. “Ueberwachung”. This is linguistic shell game. The draft law goes on to say:
‘The electronic reporting and information system (DEMIS) according to § 14 IfSG requires data processing structured, prepared and maintained according to uniform nationwide standards, as well as the operating infrastructure required for the comprehensive use of this database. Laboratories subject to reporting requirements will be obliged to report SARS-CoV-2 via this system in future. Such an obligation will also be introduced step by step by the end of 2022 with regard to other reporting obligations and persons subject to reporting requirements”. The following sentence is repeated several times in the draft law and the explanatory notes: “The Federal Ministry of Health is authorized to determine the following by statutory order without the consent of the Federal Council…’
Here is an example of these ‘authorizations’:
“The Federal Government is authorised (…) to determine that persons who wish to enter or have entered the Federal Republic of Germany and who may have been exposed to an increased risk of infection with the transmittable disease which led to the establishment of the epidemic situation of national importance, in particular because they have been in a risk area, are obliged, solely for the purpose of establishing and preventing the spread of this disease, to provide the competent authority, electronically or by means of a written substitute notification in accordance with sentence 3 above, with information on their personal details and whereabouts up to ten days before and after entry. The data transmitted to the competent authorities shall be used for effective control of compliance with the isolation required by the provisions of the federal state, in particular as a result of entry from a risk area”.
The bill continues:
“1. that the persons mentioned in a statutory instrument pursuant to section 8 sentence 1 are obliged to inform the authorities entrusted with the police control of cross-border traffic
a) to submit proof of fulfillment of the obligation laid down in a statutory instrument pursuant to section 8 sentence 1 or the substitute notification pursuant to section 8 sentence 3,
b) provide vaccination documentation in respect of the disease referred to in section8 sentence 3,
c) provide a medical certificate or a test result as to the absence of the diseasereferred to in section 8 sentence 1,
d) to provide information as to whether they have evidence of the disease referred to in section 8 sentence 1;
2. that enterprises which transport passengers by rail, bus, ship or air, operators of airports, ports, passenger train stations and bus stations must cooperate in the implementation of the statutory order pursuant to No. 1 within the scope of their operational and technical possibilities exclusively for the purpose of detecting and preventing the spread of the disease referred to in section 8 sentence 1, by
e) refraining from transporting from a corresponding risk area to the Federal Republic of Germany, provided that a return journey of persons residing in Germany is still possible, whose entry is not to be prohibited for reasons of residence law,
f) realizing transportation from a risk area to the Federal Republic of Germany only if the persons to be carried have complied with the obligations imposed in accordance with point 1 prior to transportation,
g) informing travelers barrier-freely about the valid entry and infection protection regulations and measures in the Federal Republic of Germany and the dangers of the disease mentioned in section 8 sentence 1 as well as the possibilities for its prevention and control and in this context refer to the travel and safety instructions of the Federal Foreign Office,
h) collecting the personal data necessary for the identification of a person or for the early detection of sick persons, persons suspected of being sick, persons suspected of being infected and persons who have left the country and transmit such data to the authority competent for the place of residence of the person concerned in accordance with this Act,
i) taking certain protective measures to prevent the transmission of the disease referred to in section 8 sentence 1 during transportation,
j) notifying the competent authority about the transportation of sick persons, suspected cases of disease, suspected cases of infection and cases of resignation,
k) providing passenger lists and seating plans to the competent authority upon request,
l) enabling the transportation of sick persons or suspected cases of illness, infection or eliminators, to a hospital or other appropriate facility by third parties;
3. that providers of telecommunication services and operators of public mobile telephone networks are obliged to inform persons entering the country barrier-freely via electronic messages about the applicable entry and infection protection regulations and measures in the Federal Republic of Germany. Persons who do not present a medical certificate or required test result as required by the statutory instrument pursuant to sentence 1 number 1 shall be obliged to tolerate a medical examination for the exclusion of the illness mentioned in section 8 sentence 1″.
Lawyer Beate Bahner concludes: “These paragraphs give the Minister of Health more or less the sole right to determine and even order the freedom to travel, compulsory tests or a protective vaccination.” And she adds that in order to verify compliance with the law, it will also be possible for “the police and the military to stand at the door”.
On 11/12/2020, Boris Reitschuster published on his site another article in connection with the draft of the Civil Protection Act with the title: “Creation of concrete bases of authorization. Exclusive: Scientific Service dissects Corona Act”. In it he states that ‘apparently all traffic lights are set to “wave through” the law, despite several delicate points. And it is now all the more surprising that a draft of the ‘Scientific Service’ of the Bundestag also views the draft law very critically. According to Google-News, there has not yet been a report about it (I have the original in front of me). Here in advance the conclusion of the ‘elaboration’:
The ‘Draft of a Third Law for the Protection of the Population in the Event of an Epidemic Situation of National Significance" (BT-Drs. 19/23944, hereafter: GE) improves the legal basis for measures to combat the corona pandemic. Points of criticism remain, however:
- So-called standard measures, i.e. concrete authorizations for certain measures, are not introduced. Instead, the draft law only gives examples of standard measures.
- Some formulations of the draft law are only partially consistent with the clarity and certainty of the standard. This applies, for example, to the distinction between ‘serious’, ‘severely restrictive’ and ‘simple protective measures’.
- There are no provisions on the Federal Government” obligation to report, evaluate and limit the duration of measures.
- The opportunities for the Bundestag to participate in the adoption of the legal basis have not been improved.
In plain language and somewhat pointedly: The Scientific Service considers the draft law to be a botch-up, at least in part. The fact that, in the government’s view, a third law was necessary at all has to do with case law. In the ‘Elaboration’ it says: ‘Most recently, the Bavarian AdministrativeCourt stated in an urgent decision: The challenged restrictive measures are intensive and meanwhile long-lasting encroachments on fundamental rights. For this purpose, the authorization of §§ 28, 32 IfSG may no longer be sufficient (Bavarian VGH, decision of 29.10.2020, Ref.: 20 NE 20.2360).
The paper goes on to say: ‘Criticism has been voiced that the extremely intensive and widespread interventions into fundamental rights in the context of the corona pandemic are based on the general clause of § 28 section 1 sentence. 1 IfSG. Therefore, the paper called for the creation of a concrete basis for the authorization of particularly intensive and widespread measures that provide for qualified elements of the offence and differentiated legal consequences (so-called standard measures). In § 28a sentence 1 GE [note: Gesetzentwurf, which means draft law], examples of rules are mentioned instead of the required standard measures. A large number of measures are listed which can be based on the general clause of § 28 section 1 IfSG, including exit and contact restrictions in private as well as in public space (No. 1) and the ordering of a distancing requirement in public space (No. 2). In any case, this has increased the certainty of the legal basis’.
There is also criticism of the standards that the law sets for certain steps: ‘§ 28a Section 2 of the draft law provides for a graduated procedure, oriented to the exceeding of certain thresholds. § 28a section 2 of the draft law provides that depending on the level of new infections per 100,000 inhabitants within seven days, either ‘simple’, ‘severely restrictive’ or ‘severe’ protective measures may be considered. The use of these terms is unclear, as they are not defined anywhere in the law. The explanatory memorandum of the draft law does not provide any clarification either. Among other things, it is not clear what the difference between the individual protective measures should be. The wording of § 28a section 2 of the draft law that ‘certain protective measures come into consideration’ is unusual from a legal point of view. It is not a restriction, but a mere description'”.
The following two online petitions from
- Citizen Go – Petition to: CDU faction leader Ralph Brinkhaus, CSU state group leader Alexander Dobrindt, as well as all members of the Bundestag: “Urgently: Stop the
comprehensive annulment of our basic rights” and
- openpetition.de : “Human Rights – new edition of the IfSG: No to the authorization basis! with – at present (11/12/2020) – well 172,000 respectively 225,000 signatures within fewer days, shows that a majority of the population recognized the explosiveness of the situation. It is to be hoped that the members of the Bundestag, the representatives of the people, will also recognize this and make the right decision on 11/18/2020 – AGAINST THE Civil Protection Act.
Because right must never give way to wrong!
- 01 Draft of the Third Law for the protection of the population in the event of an epidemic situation of national importance. Printed matter 19/23944 of November 03, 2020. PDF: https://dserver.bundestag.de/btd/19/239/1923944.pdf
- 02 Homepage of the Lawyers for Enlightenment. Accessed November 15, 2020. https://www.afa.zone/
- 03 Federal Statistical Office. Press release No. 435 of October 30, 2020. Death figures in September 2020: 5% above the average of previous years. Accessed November 15, 2020. https://www.destatis.de/DE/Presse/Pressemitteilungen/2020/10/PD20_435_12621.html
- 04 Homepage Federal Ministry of Health, Rare Diseases. Accessed November 15, 2020. https://www.bundesgesundheitsministerium.de/themen/praevention/gesundheitsgefahre /seltene-erkrankungen.html
- 05 Brief minutes of the 115th session of the Bundestag. Minutes No. 19/115 of November 12, 2020. Agenda item 1: Draft Third Law for the protection of the population in the event of an epidemic situation of national importance. Printed matter 19/23944. PDF: https://www.bundestag.de/resource/blob/806218/0b9863bc9677af6ac01491ac989fdd20/115-12-11-2020-3- BevSchG-nicht-lektorierte-Fassung-data.pdf
- 06 Hannelore Crolly. Welt.de. “Der heikle Plan, den die GroKo noch vor Ende des Lockdowns durchdrücken will” (The delicate plan that the GroKo wants to push through before the end of the lockdown). Published November 13, 2020. https://www.welt.de/politik/deutschland/plus219997256/Corona-Eingriffe-Der-heikle-Plan-der-GroKo.html?ticket=ST-A- 1464767-2cdF2J27CruDQN0yCGzc-sso-signin-server
- 07 Ulrich Gellermann. Rubikon. “Spahn-Diktat auf Lebenszeit. Ein neuer Gesetzentwurf zum Corona-Notstand ist auf dem Weg ins Parlament” (Spahn dictate for life. A new bill on the corona emergency is on its way to Parliament). Published November 06, 2020. https://www.rubikon.news/artikel/spahn-diktat-auf-lebenszeit
- 08 Kristin von Appen. Compact Online. “IFSG – Spahns Ermächtigungsgesetz: Heimkehr aus Risikogebiet ohne Immunitätsnachweis verboten!” (IFSG – Spahn” Enabling Act: Return from risk area prohibited without proof of immunity!). Published November 13, 2020. https://www.compact-online.de/spahns-ermaechtigungsgesetz-heimkehr-aus-risikogebiet-ohne immunitaetsnachweis- verboten
- 09 Redaktionsnetzwerk Deutschland. RND/epd. ‘Verfassungsrechtlich ein Unding’: Was ein Rechtsexperte über den Teil-Lockdown sagt” (“Constitutional nonsense”: What a legal expert says about the partial lockdown). Published October 29, 2020. https://www.rnd.de/politik/teil-lockdown-durch-corona-rechtsexperte-erwartet-klagewelle-42DZPLYDKPPHCIUUKBATVI4CC4.html
- 10 Boris Reitschuster. Reitschuster.de. „Schaffung von konkreten Ermächtigungsgrundlagen“ Exklusiv: Wissenschaftlicher Dienst zerlegt Corona-Gesetz (“Creation of concrete authorization bases”. Exclusive: Scientific service dissects Corona Law.). Published November 12, 2020. https://www.reitschuster.de/post/schaffung-von-konkreten-ermaechtigungsgrundlagen/
- 11 Boris Reitschuster. Reitschuster.de. “Lex Corona – der Einstieg in eine ökohygienische Diktatur? Demokratie auf (Virus-)Abwegen?” (Lex Corona – the entry into an eco-hygienic dictatorship? Democracy on (virus-)wrong ways). Published November 06, 2020. https://www.reitschuster.de/post/lex-corona-der-einstieg-in-eine-oekohygienische-diktatur/
- 12 Boris Reitschuster. Reitschuster.de. “Corona: Überwachung durch die Hintertür. Neuer Epidemie–Gesetzentwurf mit vielen Tücken” (Corona: Surveillance through the back door. New epidemic bill with many pitfalls). Published November 05, 2020. https://www.reitschuster.de/post/corona-ueberwachung-durch-die-hintertuer/
- 13 citizengo.org. Petition to: “CDU-Fraktionsvorsitzenden Ralph Brinkhaus, CSU-Landesgruppenchef Alexander Dobrindt, sowie alle Bundestagsabgeordneten. Dringend: Umfassende Aushebelung unserer Grundrechte stoppen!” (CDU faction leader Ralph Brinkhaus, CSU state party leader Alexander Dobrindt, as well as all members of the Bundestag. Urgent: Stop the comprehensive undermining of our basic rights!). Opened November 06, 2020. Accessed November 17, 2020 http://citizengo.org/de/pt/183319-dringend-umfassende-aushebelung unserer-grundrechte-stoppen?utm_source=wa&utm_medium=social&utm_campaign=&utm_content=tyflow
- 14 openpetition.de. Marcus Fuchs. Petition is directed to German Bundestag Petitions’ Commitee. Civil Rights. “Neuauflage des IfSG: Nein zur Ermächtigungsgrundlage!” (New edition of the IfSG: No to the basis of authorization!). Accessed November 17, 2020. https://www.openpetition.de/petition/online/neuauflage-des-ifsg-nein-zur-ermaechtigungsgrundlage