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A nursing assistant had filed a lawsuit against the vaccination requirement. Now the Federal Constitutional Court must decide. Also in play: the RKI protocols.

Walk in Düsseldorf against Corona measures such as compulsory vaccination for nursing staff in February 2022 Photo: Christoph Hardt/imago

Osnabruck taz | The case that the Osnabrück Administrative Court is hearing on Tuesday morning begins indirectly in the foyer. In the middle of the floor is an alarm red dot from the Corona days: “Please keep your distance!” Arrows point in all directions on it.

Some of them point towards Courtroom 2. The lawsuit brought by Milojka H. is being heard here. In 2022, she was a nursing assistant at the Quakenbrück Christian Hospital, unvaccinated. Her opponent in the lawsuit is the Osnabrück district. In November 2022, it imposed a ban on her entering the hospital and working there, in accordance with the Infection Protection Act (IfSG). H. had not proven that she had been vaccinated against Corona, had recovered from Corona, or was exempt from vaccination. She was therefore not allowed to work.

The mood outside Hall 2 is heated. Angry citizens with lateral thinking are talking themselves into a rage. The Nazi era has never been properly dealt with, they claim, and the same thing is happening now with Corona. An indisputable comparison.

The reason for the hearing, the ban on activity, is a thing of the past; for H. it only applied for just under two months. But the impact of the proceedings is immense: for the first time nationwide, the court is dealing with the internal Corona protocols of the Robert Koch Institute (RKI) from January 2020 to April 2021.

A bit tribunal-like

It is a session that has theatrical features. Right at the beginning, the presiding judge, President of the Administrative Court Gert-Armin Neuhäuser, warns the lateral thinkers: “This court is not a corona tribunal!” He emphasizes his powers to police the session: “I also exercise those!” Only those to whom he gives the floor can speak. The lateral thinkers are silent.

It is about the scientific basis of the facility- and company-related vaccination requirement. It is about the independence of the RKI. It is about how the RKI informed the Federal Ministry of Health (BMG), how its expertise was translated into action. It is about political influence. It does seem a bit tribunal-like.

Was the vaccination requirement introduced in the Federal Infection Protection Act unconstitutional, as H. thinks? At the beginning of 2022, the Federal Constitutional Court ruled that the vaccination requirement for nursing and health personnel was in line with the constitution. H. claims that it was already known at the time that a corona vaccination does not prevent infections. The RKI protocols are supposed to prove this. Lars Schaade, President of the RKI and former head of the Corona crisis team, testifies as a witness.

Judge Neuhäuser presents Schaade with quote after quote from the minutes. He asks him how he understands them. Schaade, who has come with legal counsel, evades, plays down the issue, takes refuge in memory lapses, confuses himself with numbers, shifts responsibility from his authority to the BMG, to RKI employees who are supposedly only expressing their individual opinions in the minutes.

“Probably even mistakes”

The judge grills him, partly cynically and ironically, emphasizing his casualness: These were not the “trials and tribulations of individuals”, statements by “lonely employees who smoked too much in the toilet”.

Schaade admits that there are “inaccuracies” in the protocols, “probably even errors.” The RKI, whose will to protect the population the court has no doubts about, is getting a list.

The lawyer for the Osnabrück district also contributes to the theatrics. The trial made him “think,” he says at the end. Unfortunately, the level of knowledge at the time was not as high as it is today. The district is innocent. But the law it applied may have been built on shaky ground.

The decision, shortly afterwards, it is clear: suspension of the legal proceedings and referral to the Federal Constitutional Court. The fundamental decision must now be made there as to whether the entry ban under Section 20a IfSG in its now invalid version of March 18, 2022 was compatible with the Basic Law: specifically with the right to physical integrity under Article 2 and freedom of occupation under Article 12.

Protection of vulnerable people

Over the course of 2022, the norm has “grown into unconstitutionality,” says Judge Neuhäuser with conviction, not just doubt. It violates fundamental rights.

Protecting vulnerable people from infection by unvaccinated staff was “a key motive” for introducing compulsory vaccination, says the court. This assessment is “shaken” by the protocols. It is a statement that will resonate.

Not only was there a “loss of communication flow” between the RKI and the BMG. The legislature had not fulfilled its duty to observe the norms, according to the court. During the pandemic, people were very quick to restrict basic rights, says Judge Neuhäuser. If necessary, this restriction should have been lifted just as quickly. Milojka H. might then have been spared the ban on working and practicing her profession.