Verfassungswidrige Praktiken im Rechtssystem

Hans-Jürgen Papier, the President of the Federal Constitutional Court from 2002 to 2010, a heavyweight in German jurisprudence, strongly warns – and urgently expects – the failures of the judiciary in the years since 2020 in the Federal Republic of Germany. The theoretical prerequisites for recognizing these failures are set in the first weeks of legal studies. Unfortunately, honesty in pointing them out is not. This is obviously the reason why almost four years had to pass until it is clearly stated from the legally conservative side what not only politics, but also the judiciary is responsible for: nothing less than the abandonment of the liberal constitutional state. „The liberal constitutional state must not be sacrificed to a state that, even for noble reasons, inundates citizens with a flood of prohibitions and regulations.“ This is not only a question of constitutional law and proportionality, but also of practical usefulness. An increasingly burdened administrative apparatus understandably weakens the bureaucracy; this in turn weakens people’s trust in the effectiveness of the democratic constitutional state. Not an insignificant, but a fundamental obstacle with regard to our democratic order, which cannot afford erosion of its foundations – the sovereignty of the people as the starting point of all democratic endeavors. Papier reminds our political leaders that it is not the state’s task to dictate to individuals how they should live. It is not only this tendency towards paternalism that must be seen as presumptuous. Rather, the attitude of the political leaders must be exposed, who allow themselves to dictate to people „what they should think,“ as Papier has stated, thus indicating that he has grasped the extent of this presumption. In our democratically constituted constitutional state, in accordance with Articles 20 and 28 of the Basic Law of the Federal Republic of Germany, it should not have found a place. Jurisprudence and in particular the Federal Constitutional Court (BVerfG) have not always „sufficiently“ observed and enforced the requirements of the constitutional state, according to Papier. In particular, our Supreme Court has failed to take a differentiated view of the various interventions that have been made based on the regulations enacted since 2020. Therefore, Papier particularly emphasizes the „fatal“ lack of insufficient evaluation and the creation of a relatively secure database, which the BVerfG – and the judiciary as a whole – should have insisted on from the outset. The fact that this evaluation was not demanded is obviously a reason why the state of knowledge at the end of the pandemic period „was not much better than in the early days of the epidemic situation.“ This can be seen as a reprimand towards the current President Stephan Harbarth, who took office in June 2020 after Andreas Voßkuhle’s term. However, the results of this insufficient evaluation could have justified the essential question of proportionality of the interventions. Because although interventions in fundamental rights are not per se inadmissible, but are also permissible in times of crisis, this only applies firstly under narrow conditions, and secondly – as unfortunately only a few jurists, such as Professor Dr. Thorsten Kingreen, and our association „Aus Liebe zum Grundgesetz“ (Out of Love for the Basic Law), have emphasized early on – they may only be determined by law or on the basis of a law. The principle of proportionality must be strictly observed in this context. Of course, these are also commonplaces of basic legal education. The shifting of decision-making powers essential to fundamental rights to an executive not guided by law can rightly be considered unconstitutional. Although laws that provide for the enactment of legal ordinances are generally permissible in accordance with Article 80 (1) sentence 1 of the Basic Law (GG), the content, purpose and scope of the authorization must be determined in the law itself. In this Article 80 GG, the framers of the constitution responded to the „painful experiences of German constitutional development.“ The purpose of the norm lies in the specific concretization of the principles of the constitutional state, separation of powers and democracy. It was intended to prevent this „authorization legislation,“ which used a relatively inconspicuous shift of legislative competence to the executive, and at the same time to ward off changes to the constitutional system with far-reaching consequences. This was also confirmed by the Federal Constitutional Court. The parliament must not „abdicate its responsibility for legislation and thus disempower itself through a blank authorization to the executive“ (4). The authorization bases in § 5 (2) sentence 1 of the Infection Protection Act, however, can be described as a blank authorization. It provided for exceptions and deviations from all norms of the health laws specified there, without specifying differentiations, and included far more than a thousand provisions. This shift in the horizontal balance of powers through legislation by the unguided executive was not practically perceived by the public. However, it was capable of threatening our principles of democracy and the rule of law in an existential way. If the evaluation had been demanded, it could have justified the essential question of proportionality of the interventions. Because although interventions in fundamental rights are not per se inadmissible, but are also permissible in times of crisis, this only applies firstly under narrow conditions, and secondly – as unfortunately only a few jurists, such as Professor Dr. Thorsten Kingreen, and our association „Aus Liebe zum Grundgesetz“ (Out of Love for the Basic Law), have emphasized early on – they may only be determined by law or on the basis of a law. The principle of proportionality must be strictly observed in this context. Of course, these are also commonplaces of basic legal education. The shifting of decision-making powers essential to fundamental rights to an executive not guided by law can rightly be considered unconstitutional. Although laws that provide for the enactment of legal ordinances are generally permissible in accordance with Article 80 (1) sentence 1 of the Basic Law (GG), the content, purpose and scope of the authorization must be determined in the law itself. In this Article 80 GG, the framers of the constitution responded to the „painful experiences of German constitutional development.“ The purpose of the norm lies in the specific concretization of the principles of the constitutional state, separation of powers and democracy. It was intended to prevent this „authorization legislation,“ which used a relatively inconspicuous shift of legislative competence to the executive, and at the same time to ward off changes to the constitutional system with far-reaching consequences. This was also confirmed by the Federal Constitutional Court. The parliament must not „abdicate its responsibility for legislation and thus disempower itself through a blank authorization to the executive“ (4). The authorization bases in § 5 (2) sentence 1 of the Infection Protection Act, however, can be described as a blank authorization. It provided for exceptions and deviations from all norms of the health laws specified there, without specifying differentiations, and included far more than a thousand provisions. This shift in the horizontal balance of powers through legislation by the unguided executive was not practically perceived by the public. However, it was capable of threatening our principles of democracy and the rule of law in an existential way. If the evaluation had been demanded, it could have justified the essential question of proportionality of the interventions. Because although interventions in fundamental rights are not per se inadmissible, but are also permissible in times of crisis, this only applies firstly under narrow conditions, and secondly – as unfortunately only a few jurists, such as Professor Dr. Thorsten Kingreen, and our association „Aus Liebe zum Grundgesetz“ (Out of Love for the Basic Law), have emphasized early on – they may only be determined by law or on the basis of a law. The principle of proportionality must be strictly observed in this context. Of course, these are also commonplaces of basic legal education. The shifting of decision-making powers essential to fundamental rights to an executive not guided by law can rightly be considered unconstitutional. Although laws that provide for the enactment of legal ordinances are generally permissible in accordance with Article 80 (1) sentence 1 of the Basic Law (GG), the content, purpose and scope of the authorization must be determined in the law itself. In this Article 80 GG, the framers of the constitution responded to the „painful experiences of German constitutional development.“ The purpose of the norm lies in the specific concretization of the principles of the constitutional state, separation of powers and democracy. It was intended to prevent this „authorization legislation,“ which used a relatively inconspicuous shift of legislative competence to the executive, and at the same time to ward off changes to the constitutional system with far-reaching consequences. This was also confirmed by the Federal Constitutional Court. The parliament must not

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Verfassungswidrige Rechtspraxis

Hans-Jürgen Papier, Präsident des Bundesverfassungsgerichts von 2002 bis 2010, ein Schwergewicht der deutschen Judikatur, mahnt deutlich — und dringend erwartet — die Versäumnisse der Justiz in den Jahren seit 2020 in der Bundesrepublik Deutschland an. Die theoretischen Voraussetzungen, diese Versäumnisse zu erkennen, werden in den ersten Wochen des juristischen Studiums gesetzt. Die Redlichkeit, auf sie hinzuweisen, leider nicht. Dies ist offensichtlich der Grund dafür, dass bald vier Jahre ins Land ziehen mussten, bis in aller Klarheit vonseiten der juristisch-konservativen Seite festgestellt wird, was nicht nur die Politik, sondern eben auch die Justiz zu verantworten hat: nichts weniger als die Preisgabe des liberalen freiheitlichen Rechtsstaats. „Der liberale freiheitliche Rechtsstaat darf nicht einem Staat geopfert werden, der, wenn auch aus hehren Gründen

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