The Federal Constitutional Court is a central institutional anchor when it comes to effectively obliging state bodies to uphold constitutional law even in a crisis.
A political crisis does not become a constitutional crisis as long as legal institutions remain functional, so that crisis management can be kept in line with the law.
The time factor is also important here, because legal protection only stabilizes if it is provided in good time.
Paragraph 32 of the Federal Constitutional Court Act therefore assigns the court the competence to issue interim orders in summary proceedings.
It rarely uses it.
Oliver Lepsius has just described the practice of the court in a comprehensive essay in the magazine "Der Staat" (Jg. 60, Issue 4 / Duncker &
Humblot) subjected to remarkable analysis and criticism.
The reason given for him was the rejection of an interim order against the exit restrictions in the course of the "federal emergency brake" (decision of May 5, 2021, 1 BvR 781/21).
The Federal Constitutional Court traditionally does not examine the chances of success of (admissible) constitutional complaints in the context of interim orders – unlike administrative courts – but weighs up the consequences.
The consequences if an order is not issued but later turns out to be unconstitutional of the challenged measure are compared with the consequences if a measure that was ultimately constitutional is temporarily suspended.
When it comes to suspending a parliamentary law, the court rightly applies strict standards in order to avoid far-reaching interventions in the process of parliamentary-democratic decision-making.
Lepsius criticizes this yardstick because it focuses on actual consequences,
the determining power of substantive law, on the other hand, dwindles.
Now this reluctance is in turn the result of well-founded material constitutional standards of functional division of powers.
With the curfew, however, the legal automatism of the federal emergency brake triggered bans with sanctions without interposing an administrative act that could be checked by a court.
In principle, legal protection can only be obtained from the constitutional courts.
As Lepsius complains, this does in fact make it more difficult to balance proportionality precisely.
However, such automatisms are also ubiquitous if you only think of administrative offenses and criminal law.
So far, this has never been a reason to apply different standards to self-executing laws.
The self-pity of the affluent citizen
Ultimately, Lepsius poses the fundamental question of the role of the Federal Constitutional Court in the crisis.
This is not just any court, but a constitutional body that must also do justice to this independent role.
This includes “particularly in times when crisis policy has a fundamental impact on constitutional law, to provide a basic constitutional orientation, precisely because fundamental rights embody the undivided basic consensus”.
Hans Hugo Klein, the constitutional law teacher who habilitated in Heidelberg, had a similar view in 1968 in the court of which he was to be a member of the second senate from 1983 to 1996.
Is that an adequate role description?
In volatile crisis situations that depend on factual assessments, a constitutional court is institutionally particularly poorly placed to make final assessments, because it is obviously not in a position to make probabilistic risk assessments itself, and certainly not better than the representative-democratic decision-making association of government, parliament and knowledge-generating specialist authorities.
Freedom is not an abstraction, the decisive factor is always which freedom is specifically limited.
Is this really about the "severest encroachments on fundamental rights in the history of the Federal Republic"?
In addition to 30,000 telephone taps per year, preventive detention, withdrawal of custody, deportation to Afghanistan, EU arrest warrant and extradition to Russia, this phrase, which is cultivated by many, seems a little saturated with the self-pity of the affluent citizen.
And while people here are mourning the loss of the shopping mall, the nocturnal stroll and eating at Italian restaurants, 3,000 refugees drowned miserably in the Mediterranean during the pandemic as a result of the regime's encroachment on fundamental rights at the European external border.
Ultimately, the Federal Constitutional Court then rejected the constitutional complaints against the federal emergency brake in the main because the measure was justified (decision of November 19, 2021 - 1 BvR 781/21).
It has prudently withstood the sometimes shrill political crisis rhetoric and the widespread constitutional romanticism of sentimental lawyers yearning for rebellion.
The court has strengthened the crisis resilience of the constitution precisely by not forming any exceptional crisis constitutional law doctrine, but sticking with well-established standards of the normal state.