Some European countries have imposed curfews or restrictions under their laws to prevent the further spread of the corona virus – including Italy, Spain or France. Depending on the order, people can only go outside to buy groceries or medicines, go to the doctor, work or help other people. Crowds of people are prohibited.
In Munich, Bavarian Prime Minister Markus Söder announced nationwide exit restrictions on Friday. “We are shutting down public life almost completely,” said Söder. Despite the measures that have already been imposed, there are still a large number of groups. “We can no longer accept that,” said the CSU chief. However, the state government is not concerned with locking everything up now and causing a “storage freak”: “Fresh air is good”.
The fact that Söder emphasizes this shows how drastic the term “curfew” sounds and how difficult it is to summarize the sometimes very different dispositions and restrictions. In fact, such measures can significantly curtail individual freedom. What are the legal bases in Germany? An overview:
On what legal basis can a curfew be imposed in Germany or the so-called free movement of people restricted?
The Basic Law does not know the term “curfew”. However, there are legal possibilities to restrict freedom of movement in certain emergencies. In peacetime, imposing these measures is not the responsibility of the federal government, but of the federal states.
For example, on the basis of paragraph 28 of the Infection Protection Act, the competent authorities can “oblige people not to leave the place where they are or to not enter certain places”. Based on the Infection Protection Act, gatherings of people can also be banned or daycare centers and schools closed, as is now the case. This is possible through orders from the health authorities, but also through nationwide statutory ordinances of the individual federal states.
The fundamental rights of freedom of the person granted in the Basic Law (Article 2 Paragraph 2 Clause 2 Basic Law), freedom of assembly (Article 8 Basic Law) and the inviolability of the home (Article 13 Paragraph 1 Basic Law) may be affected.
The form and intensity of the measures may vary depending on the reason and urgency, but must in any case be proportionate.
In addition, Article 11 of the Basic Law in paragraph 2 speaks of the possibility of restricting the free movement of Germans if, among other things, this is “necessary to combat a disease risk”. Free movement means the possibility to take up residence and domicile anywhere in Germany. The stay must be of a certain duration and regularity. Leaving the house only for a short time is not meant. Art. 11 guarantees all Germans to enter the federal territory at the same time.
However, a law is always necessary for the intervention, for example, in addition to the primarily applicable infection protection law, the civil protection laws of the federal states. These also contain the possibility of the fundamental rights being restricted by the authorities, for example certain areas can be blocked or vacated. The Bavarian Disaster Protection Act, on the basis of which the disaster case has now been proclaimed nationwide, allows in addition to the restriction of the fundamental rights already mentioned, Article 19 also restricts the free movement of persons protected by fundamental law.
In the end, can the federal government itself impose a nationwide curfew?
With the addition of the Basic Law, the so-called emergency constitution, the legislators at the end of the 1960s gave the federal government various far-reaching rights of access in the event of defense or tension, as well as natural disasters or similar accidents. For example, Article 35 of the Basic Law enables the Confederation and the Länder to work together across competencies in the event of particularly serious emergencies to require police forces or Bundeswehr units.
The nationwide order of a curfew by the federal government would probably not be covered by this. Of course there is an exchange and cooperation between federal and state governments in federalism. After coordination with the federal states, the federal government can make recommendations, which they then implement within their area of responsibility.
What is then specifically restricted?
The federal states regulate either by general decree or decree which specific measures should apply to whom. For example, jogging may be permitted for individuals, and certain professional groups may work unhindered. A curfew at certain times or in certain areas is also conceivable. In the now enacted Exit restriction in Bavaria It is said, for example, that leaving the apartment is only allowed if there are valid reasons. Accordingly, this also includes: “Sports and exercise in the fresh air, but only alone or with members of your own household and without any other group formation.” Acts to care for animals are also allowed.
What are the penalties for violations?
A curfew would be monitored primarily by the police. According to the Infection Protection Act, violations can be punished as an administrative offense, in certain cases even with imprisonment of up to two years or a fine. The restriction now imposed in Bavaria states that violations can be punished as an administrative offense and fines of up to € 25,000.
Assistance: Sandra Öfner, Dietmar Hipp