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

Germany's constitutional court has said that pausing the night-time curfew to review its legality would pose "considerable risks" to the population.

Germany's top court refuses to throw out night-time curfew
An empty street in Frankfurt after the introduction of the curfew. Photo: picture alliance/dpa | Sebastian Gollnow

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. 

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‘Let’s not lower our guard,’ Spain’s PM urges after street parties mark end of curfew

Spain's government called Monday for "responsibility", insisting health restrictions were still in place, after weekend images showed people celebrating the end of a state of emergency without masks or social distancing.

'Let's not lower our guard,' Spain's PM urges after street parties mark end of curfew
Spanish Prime Minister Pedro Sánchez. Photo: Jose COELHO/POOL/AFP

 “The end of the state of emergency does not mean the end of restrictions. Far from it. The virus threat still exists,” Justice Minister Juan Carlos Campo wrote in an opinion piece in El País daily.

“That’s why the authorities will continue to take action and the public must keep on behaving responsibly.”

After more than six months of curfews and a ban on travel between Spain’s 17 regions under a state of emergency which was imposed in late October, Spaniards were afforded new freedoms when the measure expired in the early hours of Sunday.

As the deadline passed, crowds of revellers hit the streets of Madrid, Barcelona and other cities, many not wearing masks or social distancing. The images were splashed across Monday’s front pages, sparking much debate.

Asked about the images during an official visit to Greece, Spain’s Prime Minister Pedro Sánchez warned against “lowering our guard”.

“Vaccination is progressing well, with very positive results” but “the virus continues to circulate and we must maintain barriers,” he said.

With nearly 79,000 deaths and more than 3.5 million infections, Spain has been badly hit by the pandemic and the images triggered a backlash against Sánchez’s left-wing government.

“Sánchez bears sole responsibility for these gatherings,” fumed opposition leader Pablo Casado who heads the right-wing Popular Party, accusing the government of not having a backup plan after the restrictions ended.

“With Sánchez, we’ve gone from a state of emergency to a state of chaos.”



Right-wing grumbling

Although the Madrid region’s right-wing rulers have repeatedly refused to impose tight restrictions on the local economy, letting bars and restaurants open even when virus cases were rife, they were quick to round on Sánchez.

“Freedom isn’t about having drinking parties in the street,” chided Madrid’s PP mayor Jose Luis Martinez Almeida.

“The central government just wasn’t prepared,” grumbled Juan Manuel Moreno, another PP leader who runs the southern Andalusia region, demanding “effective tools” and inter-regional coordination to manage the public health crisis.

Despite the outcry, the administration in Madrid — where hardliner Isabel Díaz Ayuso was re-elected last week by a landslide — blamed the revelry on just a handful of miscreants.

“We can’t lock up seven million people because of a few hundred youngsters,” said Enrique López, the region’s top justice official.

Madrid regional president Isabel Díaz Ayuso. Photo: OSCAR DEL POZO / AFP

 A regional lottery? 

In his editorial, the justice minister insisted there were sufficient provisions within the law “to manage the pandemic in its current state,” noting that 28 percent of the population had already received a first dose of the vaccine.

The regions can still limit the opening hours of shops, bars and restaurants as well as their capacity, but if they want to reimpose a curfew
or close the regional borders, they will need court approval.

In tourist hotspots such as the Balearic Islands or the eastern Valencia region, regional authorities have already received court approval to keep their curfew in place.

On the other hand, in the Canary Islands and the northern Basque Country region, the courts have overturned a request to maintain the curfew.

The Canary Islands have said they will appeal the decision to Spain’s Supreme Court, a measure put in place by the government as backup for regional authorities whose requests are halted locally.

And in such cases, Spain’s top court will move “to unify the criteria used to ratify or deny health measures,” Campos wrote.

“If there is a disparity of criteria, it should be our top court that sets the common standard for the whole country.”