Lockdown regulation partly unlawful «kleinezeitung.at

The Viennese lawyer particularly criticizes the points relating to private living space. © (c) VAKSMANV – stock.adobe.com

Tried, but not yet perfect “is the second lockdown regulation from the point of view of lawyer-president Rupert Wolff. This time, the government is showing a more careful approach to restricting fundamental rights and freedoms than in March and it has visibly tried to be more careful with the regulations. But in the important area of ​​curfews, the scope for interpretation is “extremely large” for some exceptions – and again, many problem cases can be expected.

Much is “very vague” and not sufficiently explained. The citizens would not know what they are allowed to do and what not – and it will be “very difficult” for the executive to implement these regulations. So the question arises as to how one can “make believable” to a police officer, if he stops you at 11 p.m. – that you have just visited your grandmother – as required. “It is inevitable that there will be many problem cases,” which would then have to be clarified by the courts, said Wolff in an interview with the APA.

Sometimes too unclear

In addition, the exceptions listed in the ordinance from the general exit ban between 8 p.m. and 6 a.m. remained far too unclear. So it is not explained what the “exercise of family rights and the fulfillment of family duties” includes: whether you can visit your heir or great-grandchildren after 8 pm – or whether this also applies to a same-sex couple with an adopted child.

Wolff complains that there is no explanation in the regulation for what is meant by “covering the necessary basic needs of daily life”. To do this, you first have to read the explanations on the Covid 19 Measures Act. Then you find that driving to your second home or caring for animals is also included.

What is noticeable to the lawyer is that the new lockdown regulation simultaneously decides on more lenient measures (entry bans, mask and distance requirements) and the “very hard” curfews. According to the underlying Covid law, curfews are the last resort in the event that more lenient measures are not enough to prevent the collapse of the health system. It is to be hoped that the Minister of Health can substantiate why such a tough measure is necessary, said Wolff – with reference to the fact that the VfGH has repealed Corona rules (such as the minimum distance from restaurant tables) due to a lack of documentation.

The lockdown regulation is – next to the one from March – one of the most massive encroachments on fundamental rights and freedoms in the Second Republic. So special care, the greatest possible transparency and comprehensive communication are required. In this regard, the government has made every effort, acknowledges the President of the Austrian Bar Association. This can be seen, for example, in the fact that the curfews only apply at night and not – as in March – continuously, or in the fact that entry of any type of business premises is not prohibited.

Lockdown regulation partly unlawful

The Viennese lawyer Florian Horn has sharply criticized the text of the regulation for the federal government’s corona lockdown. He considers the regulations on the initial provisions to be illegal as well as those on the party bans in gardens, garages, barns or sheds, as he explained to the APA.

Regarding the exit restrictions between 8 p.m. and 6 a.m., Horn told the APA that the regulation was “extremely vague because the exemptions are so extensive that they seem to lift the ban at all “. In particular, the exception reason “staying outdoors for physical and mental relaxation” could be unconstitutional due to the “principle of certainty”, according to Horn: the text of the regulation does not provide enough concrete information about what is meant.

Horn also sees the regulation because of the reference to the “own private living area” as “highly problematic”. The stipulation that “leaving your own private living area” and “lingering outside your own private living area” at night is only permitted for certain purposes means, conversely, that you are not allowed to be in someone else’s private living space at this time (as communicated by the government). For Horn this is “illegal” because someone could try to “base a police investigation (in the affected apartments, note) on this regulation”. Such a review would be “unconstitutional because disproportionate” (the government always emphasizes that this is not planned, note)

The Determining one’s own private living space is also illegal, according to Horn. Because the private living area is explicitly excluded from regulations in the COVID-19 Measures Act, to which the regulation refers. The law says that this authorizes “to regulate the entry and driving of business premises, workplaces, certain places and public places in their entirety (…)” As “certain places” are “certain public and certain private places with exception of the private living area “(§1 (3) COVID-19-MG). “That’s why it shouldn’t be regulated at all,” said Horn.

Exit restrictions disproportionate?

The question also arose as to whether the exit restrictions are not disproportionate because milder means could possibly be used. Because the Measures Act states that such exit restrictions are only permissible “if it is essential to prevent the spread of COVID-19 in order to prevent the spread of COVID-19 impending collapse of medical care or similar emergency situations to be prevented, and measures according to §§ 3 and 4 are not sufficient “. Paragraphs 3 and 4 allow the closure of business premises and the entry of public places a good part) remain open, this provision could be violated, according to the expert.

There is no legal basis for restrictions in gardens and co

Both For Horn there is no legal basis for visiting bans or restrictions in gardens, garages, barns and sheds. This regulation can be found in the regulation under the event regulations. Events are therefore generally prohibited, with an exception for “private living areas”. However, those places are not considered private living areas “that do not serve to satisfy an immediate need for living”, which according to the ordinance concerns gardens, garages, barns and sheds.

According to Horn, the problem with this passage is that the ordinance does not define the term “ event ” and does not specify a number from when a meeting is considered an event. Therefore only the reference to the Epidemic Act, on which the regulation is based, remains. There, in §15, there is the possibility of restricting events “that involve a confluence of large crowds”. According to Horn, the crux of the matter is the term “larger crowds”. “It’s not six people, nor is it a small private meeting of two or three people. “A ban on such meetings is therefore illegal – so” the Constitutional Court should lift it, “said Horn.

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