Constitutional lawyer Bernd-Christian Funk also regards these bans as “not permissible”. The Linz constitutional law professor Andreas Janko, however, sees it covered by the legal situation.
Ban on private parties in Salzburg
Such provisions have so far been enacted in Tyrol, Vorarlberg, Salzburg and Upper Austria. According to information from the Ministry of Social Affairs, these regulations (as well as the COVID-19 regulation of the health minister itself) are based on the Epidemic Act.
Lawyer sees no legal basis
The Viennese lawyer Horn explained in an APA conversation that there was no legal basis for these Corona provisions. Specifically, according to Horn, it is about §15 of the Epidemic Act, but this provision is not a suitable legal basis either. It is geared towards events that “involve a confluence of large crowds”, as the law says. For Horn, events (or celebrations) on a smaller scale in the named locations are not included with this formulation. Only larger celebrations could be prohibited with reference to the epidemic law. “Section 15 of the Epidemic Law is not restricted to such small groups,” he said.
And Horn again fundamentally criticized the quality of the regulations: Because from the COVID-19 regulation on measures, to which the state regulations refer, it is not immediately clear whether the event provisions regulated in § 10 of the regulation are specific based on the Epidemic Act or at least on the Measures Act. For small groups, however, this makes no difference anyway, because there is currently no legal basis for their ban in the Measures Act.
Garages and cellars are part of “private living space”
Constitutional lawyer Bernd-Christian Funk takes a similar view. In the “Standard“(Thursday edition) he said that the term” private living space “is not defined in more detail in the federal ordinance. However, reference is made there to the explanations – and there living space is” defined in a broad sense, “explains Funk. In addition to houses and apartments In multi-family houses, adjoining rooms such as garages, cellar compartments and garden sheds are also recorded.
“From my point of view, it is not permissible to restrict this further and also to regulate festivals in garages. Otherwise, you risk that a fight against the regulation before the Constitutional Court will be successful,” said Funk. In rural square yards, as is common in Upper Austria, even stables and barns, if they are part of a structural network, could be protected from controls as private rooms. With a classic hay barn in a field, however, a stricter celebration rule should be permissible, according to the expert.
No express prohibition
Andreas Janko, professor of constitutional law at the Johannes Keppler University in Linz, sees the ban on garage parties well covered by Paragraph 15 of the Epidemic Act. “In contrast to the COVID Measures Act, it does not contain an express ban on regulations for private living areas,” he said in S1– “Evening Journal” on Wednesday. And the living area in the narrower sense is excluded – “it’s only about the environment of the private living area such as garages, barns, tents in the garden and the like”.
In addition, one must ask oneself what the alternatives would be: “The alternative would actually be the lockdown. And in relation to a lockdown, such a restriction, even if it affects the private sphere, is of course still the milder means,” said Janko .
“Six people for sure not a larger crowd”
Horn sees the problem not only with the ban on parties in the private rooms mentioned, but also generally with the restrictions on meetings and small events to six (indoor) or twelve (outdoor) people in the nationwide regulation. As he had already noted last Friday (in the Ö1 lunch journal), the legal basis in the Epidemic Act is missing here too (for the same reasons as with the garage parties). “Ten people or twelve people or six people are definitely not a large crowd,” Horn said last week about this area of the latest Corona measures. “If there is an epidemiological need for such a ban, then this would have to be justified and at the same time a suitable, proportionate and constitutional legal basis created,” said Horn to the APA.