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WORLD:
Ms. Leisner-Egensperger, in the key issues paper of the federal government on the vaccination summit it says: “The aim is to lift all protective measures as soon as community immunity has been achieved.” Can one maintain strict restrictions on fundamental rights until 70 to 80 percent of the population have been vaccinated?
Anna Leisner-Egensperger:
No.
Community immunity is the goal of the pandemic measures.
But it is not a prerequisite for exercising freedom rights to which everyone is entitled from the outset.
The standard for the pandemic protective measures is exclusively the risk of infection.
When someone is barely contagious, there is simply no longer any reason to restrict their freedom.
The schematizing equality is not a constitutional protected asset.
Anna Leisner-Egensperger is a constitutional lawyer at the University of Jena
Source: Friedrich Schiller University Jena / Peter Scheere
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WORLD:
“Community” and “solidarity” are often mentioned when it comes to maintaining the restrictions.
The as yet unvaccinated population can hardly be expected to continue to obey all the rules while the vaccinated are already exercising their liberties again.
Is the argument also relevant with regard to the constitution?
Leisner-Egensperger:
The state is obliged to enable people to exercise their basic rights when they are no longer infectious.
He must not uphold restrictions because he is afraid of a debate about envy or a division in society.
Avoiding resentment could, however, help to ensure that as many people as possible stick to the rules.
I can imagine that this is the main reason why the envy argument is brought into play so often.
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WORLD:
The argument is interesting.
Is it constitutionally legitimate to say: We are further restricting fundamental rights for people who have been vaccinated, because we are increasing the acceptance of the measures and thus better protecting the population as a whole?
Leisner-Egensperger:
In fact, some restrictions on fundamental rights will have to be upheld in order not to endanger the acceptance and thus the overall success of the measures.
For example, it will be possible to demand that vaccinated people continue to wear masks and keep their distance.
The remedy is effective and the procedure is comparatively mild.
However, severe restrictions on fundamental rights cannot be justified for vaccinated people.
"It is absolutely clear that we have to give vaccinated people more basic rights"
While most people still do not know when to get a vaccination appointment, the discussion about more freedom for those who have already been vaccinated is in full swing.
As usual, individual federal states are also advancing on this issue.
Source: WORLD
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WORLD:
Another argument is that it is not yet known for sure whether people who have been vaccinated may still be able to transmit the virus.
To what extent can the state invoke this uncertainty in order to continue to justify restrictions on vaccinated persons?
Leisner-Egensperger:
In principle, the state has a wide scope for assessment and development.
But he has to base his evaluations on scientific knowledge.
After the Robert Koch Institute, as the national authority, made it clear at the beginning of April that there is no longer any relevant risk of infection from people who have been vaccinated twice, the state is obliged to heed this epidemiological finding.
There is still a residual risk, but this must be differentiated from the general life risk to which everyone is exposed.
WORLD:
What does that mean in concrete terms?
From when do which reliefs have to apply to vaccinated persons?
Leisner-Egensperger:
Restrictions of freedom, which are not very visible to the non-vaccinated and where the immune status can be easily controlled, will have to be lifted for the vaccinated.
These include, for example, contact bans in retirement homes.
Residents must be allowed to eat together again when they are all vaccinated and tested.
In my opinion, contact restrictions in private space and exit restrictions for vaccinated people should also fall.
The objection to this is that the immune status cannot be easily controlled in the case of exit restrictions.
But I see it differently.
Evidence of vaccination could be required if someone is picked up late at night.
WORLD:
The Bavarian Prime Minister Markus Söder (CSU) says: Vaccinated persons would not be entitled to openings of facilities such as swimming pools in the future either.
Is that correct?
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Leisner-Egensperger:
Yes, that's so right.
The state is free to keep certain facilities such as public swimming pools closed as part of general risk prevention, especially as long as the vaccination rate is still low.
Söder wants to lift vaccination prioritization earlier
The Bavarian Prime Minister Markus Söder (CSU) wants to lift the vaccination prioritization in his state earlier than the federal government.
“The goal is in the middle or end of May,” said Söder after a meeting of his cabinet in Munich.
Source: WORLD
WORLD:
What about the private sector?
Can the state still order the closure of restaurants even if they are all vaccinated?
Leisner-Egensperger:
No.
Because the closure of restaurants is a significant encroachment on freedom of occupation.
If a restaurant operator in a district in which many have already been vaccinated can credibly demonstrate that he himself is vaccinated and only allows vaccinated people in, he must be allowed to reopen his restaurant, observing the hygiene rules.
At the moment I don't see the practical need, because so many haven't been vaccinated yet.
But of course it will come.
WORLD:
I would like to come back to the rights of the non-vaccinated.
You once said yourself: A two-class society in which one group has significantly more rights than the other should not exist in Germany with a view to the principle of equality.
What must the state do to curb inequality?
Leisner-Egensperger:
We have a problem of equality as long as a vaccination offer cannot be made to everyone.
The state is then obliged to provide non-vaccinated people with the widest possible range of tests so that they can act like vaccinated people in many everyday situations.
However, according to the case law of the Federal Constitutional Court, such benefits are subject to the reservation of the possible.
A non-vaccinated person cannot reasonably claim full equality with those who have been vaccinated.
WORLD:
So far, people in Germany have only been able to get a free test once a week.
Does one have to expand the offer with a view to equal treatment, the more rights vaccinated people can exercise again?
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Leisner-Egensperger:
At the moment, given the lockdown, there is little point in offering tests for everyone every day.
But if museums and restaurants are reopened, then the state would indeed be obliged to make more test capacities available.
WORLD:
What precautions must the state take to protect people who will not be able to be vaccinated in the foreseeable future - children, adolescents - from discrimination?
Leisner-Egensperger:
The state must do everything possible to achieve the greatest possible equality between the group of those who have been vaccinated and those who have not been vaccinated.
He must increase his financial efforts in order to enable pregnant women and children, for example, who cannot yet be vaccinated, to exercise their rights as far as possible.
This also includes intensifying research on the risk of infection for children.