Posted on December 28th, 2021 by RL.
«We ask you (…) to ask the Federal Council to commit how he will restore the constitutional order and demonstrate to the Federal Assembly what total epidemiological, national, private and social benefits his measures of September 8, 2021 (expansion of the 3G certificate requirement) and of December 17, 2021 (2G certificate requirement) for the federal government and Cantons have brought so far. “
With these words came a legal committee in an open Brief to President of the National Council Irène Kälin and President of the Council of States Thomas Hefti. The driving forces behind the eleven-page letter are the lawyer Philipp Kruse and his colleague Markus Zollinger, who worked as an assistant public prosecutor at the Zurich public prosecutor’s office until the beginning of November 2021 (Corona-Transition reported).
In their letter, the two lawyers again draw attention to the responsibility which belongs to the parliamentarians: namely that it is the task of the legislature to critically review the measures of the government for their effectiveness.
Because that’s what it says in Article 170 of the Federal Constitution. The letter, which was sent on December 24, 2021, has so far been signed by 150 lawyers (as of Monday evening). “It was time for the lawyers to speak up with a somewhat substantial contradiction,” says Kruse Corona-Transition.
Lack of foundation
The background to the letter is the government’s recent tightening of the law. For the Legal Committee there is no legal basis for the 2G regulation. This is even unconstitutional. “As with the 3G certificate requirement, there is no legal basis in either the Covid-19 Act or the Epidemics Act,” write Kruse and Zollinger in the letter.
The lawyers draw attention to well-known legal experts who would have noticed this when the 3G rule was introduced – for example, criminal law professor Marcel Niggli and constitutional lawyer Andreas Kley (Corona-Transition reported, see here and here). Even with the recent tightening, nothing has changed in that regard. “The even more overreaching 2G rule” is also unconstitutional.
The Legal Committee refers to Article 36 of the Federal Constitution: This stipulates that the measures decided must be justified “by a public interest”. But this interest is not given. This is partly because there is no excess mortality. “The demography-adjusted death rates for Switzerland in the current year 2021 are still well below the average of the previous 10 years,” said Kruse and Zollinger in their letter.
They also show that there has recently been no particularly high utilization of hospitals in Switzerland. “As of December 15, 2021, a total of 83% of Swiss hospital beds were being used; the proportion of ‘COVID patients’ was officially only 7.2% despite the ‘epidemic’.” The intensive care units were used to 80.4%, the proportion of Covid patients was 34.5%. It should be taken into account that a free quota of approx. 20% indicates normal operation.
In memory of: The Federal Council justifies the expansion of the certificate (2G), among other things, by stating that it should prevent the hospitals from being overburdened. The government also recently argued that this would reduce the high number of cases.
However, the Legal Committee considers the “number of cases” to be an “irrelevant criterion”, to assess the current infection rate. “Considered on its own, this measured variable is, according to the WHO, known to be completely worthless.” Kruse and Zollinger also refer to the Federal Supreme Court. This has also already stated that “a positive PCR test is not a diagnosis of disease and in itself is not very meaningful”.
2G without benefit
It is also clear to the Legal Committee that the 2G regulation will be of no use: “The prescribed interventions in the basic rights and freedoms of the unvaccinated are unsuitable from the outset, since vaccinated persons can transmit the virus as well as unvaccinated persons and in the event of a ‘breakthrough in vaccination’ they can become as seriously ill as unvaccinated persons. »
Against this background, the lawyers come to the conclusion, that the current measures, which particularly affect the unvaccinated, “cannot be justified in any way, either epidemiologically or legally”. The lawyers, who also draw attention to the social damage caused by the measures, come to the conclusion:
“With a bundle of senseless and dangerous measures – in particular with the mandatory 2G certificate that has now been imposed – the Federal Council is violating the Swiss Federal Constitution in several ways. It violates fundamental rights and freedoms such as the right to physical integrity and freedom of movement (Art. 10 Paragraph 2 BV), the right of children and young people to special protection of their integrity (Art. 11 Paragraph 1 BV), freedom of association (Art 23 BV), the property guarantee (Art. 26 Para. 2 BV; material expropriation) and economic freedom (Art. 27 BV). In addition, he violates the legal equality principle (Art. 8 Para. 1 BV), the prohibition of discrimination (Art. 8 Para. 2 BV) and the prohibition of arbitrariness (Art. 9 BV). “
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