Germany's top court refuses to throw out night-time curfew

The court rejected an attempt to challenge the night-time curfew, citing its "legitimate purpose" in limiting contact and protecting the health of the population.  

The night-term curfew was imposed as part of the federal government's emergency brake legislation, which came into force on April 23rd. The new law dictates that, in areas with more than 100 infections per 100,000 of the populace, a number of strict measures - including an evening curfew - must be put in place. 

READ ALSO: Germany pulls virus ’emergency brake’ but not everyone on board

In its ruling on Wednesday, the court admitted that the effectiveness of the measures could be "debated", but said it was not "implausible" that the curfew would help to limit private gatherings in the evenings. 

Above all, the rules serve a legitimate purpose in "protecting life, health and the functionality of the healthcare system", it added. 

Scientific backing 

The urgent petition against the curfew had been made by members of the pro-business Free Democratic Party (FDP), who argued that forbidding people from leaving their homes would contradict the freedoms set out in Germany's Basic Law.

They also argued that basing the law on the 7 day incidence - the number of Covid-19 infections per 100,000 inhabitants of the country within a 7 day period- was badly reasoned. According to the FDP, the 7-day incidence doesn't clarify whether a spike in infections is due to a small cluster of infections or a wider spread of the virus.

While the court didn't comment on the incidence, jurors said that that lawmakers did have scientific backing for their decision to impose the curfew.

The regulations "weren't pulled out of thin air", they said in the ruling. 

'Considerable risk'

When a decision is made on an urgent petition in the constitutional court, judges must do what's known as a "weighing of consequences". In it, they decide which would be worse: to make an urgent decision against the challenge, and then later overturn it in their main decision, or visa versa. 

In this case, stopping the night-time curfew now, only to decide that it was constitutional later, would pose "considerable risk" to the general population, the court decided.

The outside of the Constitutional Court in Karlsruhe. Photo: picture alliance/dpa | Uli Deck

There is some hope for the challengers, however, since the court has yet to decide whether the curfew can still be imposed on people who "can be presumed to be immunised" - in other words, anyone who is vaccinated against or has recovered from Covid-19.

READ ALSO: ‘Closer to normality’: German Bundestag to vote on easing Covid curbs for vaccinated people

But since the federal government is already planning on easing contact restrictions - including the curfew - for this group of people, this is unlikely to make a major difference to the law. 

Furthermore, as Covid infections are falling in many places, the curfew will be lifted in parts of Germany soon.

Legal challenges 

Throughout the Covid-19 pandemic, courts in Germany have been asked to make key decisions on the fundamental rights and freedoms of citizens - and often with little time to do so. 

Alongside legal challenges from the FDP and members of the Social Democratic Party (SDP), the court in Karlsruhe has also received numerous petitions from citizens opposed to the emergency brake measures in recent weeks. According to Die Zeit, the court has been pummelled by around 280 constitutional complaints since the new law came into force two weeks ago. 

READ ALSO: How anti-coronavirus measures in Germany are stumbling in courts

These legal challenges to lockdown rules have occasionally been successful. 

Last October, a Berlin court ruled in favour of a group of hospitality business owners to overturn the closing of bars and restaurants in the city between 11pm and 6pm. At the time, the court argued that the restrictions were a “disproportionate encroachment on the freedom” of the hospitality industry.