Before the Constitutional Court

Covid rules thrown to the wind

Defence wants analysis of Covid rules

Prosecutor General’s Office continues to take a hard stance

Does the right to life and physical integrity justify interfering with another fundamental right? This is clearly a question for the Constitutional Court—the highest court in Luxembourg. The Court ensures that the laws in Luxembourg respect the rules of our Constitution, as no law in Luxembourg may violate our Constitution (Basic Law). The Constitutional Court is independent. This means that no one is allowed to influence its rulings—not even the Grand Duke or the government. This independence is crucial in a democracy. If anyone believes that a law violates the Constitution, they can have it examined.

Peter Freitag and Jean-Marie Jacoby, two prominent figures of the Covid protest movement in Luxembourg, had their case examined before the Constitutional Court last Friday. They were not present themselves but were represented by their lawyers.

Freitag and Jacoby had failed to comply with public life restrictions during the Covid pandemic. Because they repeatedly violated the imposition of mandatory masks and distance rules, alcohol and curfews, they ended up before the police court in mid-January 2022. In the proceedings, the public prosecutor’s office requested that the two men be sentenced to a fine.

In their defence, the defendants invoked the right to demonstrate and their right to freedom of expression. They held that their freedom under the Luxembourg Basic Law had been violated. They stated on the record that the regulations imposed by the government were all discriminatory and unconstitutional. The measures taken to contain the Covid pandemic restricted fundamental rights, they claimed. The court then felt obliged to refer the matter to the Constitutional Court. The presiding judge requested that the Constitutional Court clarify whether various Covid-19 measures taken by the government contravened the Basic Law.

The police court formulated four so-called preliminary questions on this issue and passed them on to the Constitutional Court. The main points of attack mounted by the defence against the state measures taken to contain the pandemic include the imposition of mandatory masks and distance rules, alcohol and curfews. Thus, Freitag and Jacoby have not yet been convicted. The Constitutional Court is supposed to first carefully examine whether the state measures (Covid rules) are compatible with the Constitution. A decision in this regard is necessary for the verdict, emphasised the two lawyers, Me Christian Bock and Me Marc Kohnen.

A stress test for the rule of law

Since the “first wave” of the Covid pandemic (coronavirus or COVID-19) in the Grand Duchy of Luxembourg in spring 2020, many judicial decisions have been made. However, as time went on, the judicial decisions in Luxembourg as well as in Diekirch repeatedly called for a stronger consideration of the individual case. The bottom line, however, is that the vast majority of applications have remained unsuccessful to date. Estimates suggest that in a very high percentage of cases, the court found in favour of the public authorities. In the end, the courts overwhelmingly upheld measures restricting freedom when the health risks caused by the coronavirus were generally considered to be particularly high.

In his plea, Assistant Attorney General John Petry said: “First of all, it is true that fundamental rights not only protect us from state interference, but also oblige the state to protect our rights. Under our Constitution, all state authority is obliged to respect and protect human dignity. Therefore, the state must protect the population from the coronavirus and cannot simply allow the virus to run unchecked. It is undisputed that life and physical integrity are prime values to protect. However, the right to life and physical integrity is not without limitation. The Constitution provides that the right to life may be interfered with “on the basis of a law”. Just like all other fundamental rights, it must also be “carefully balanced” with conflicting Constitutional law, meaning in particular other fundamental rights. In the neighbouring countries of Germany and France, the constitutional judges recently reiterated the legislature’s broad scope for action. The protection of health and life is a legitimate purpose, the pursuit of which may be invoked to justify even severe restrictions on professional freedom, Petry said, mentioning the Karlsruhe court. At that time, there was a “particular urgency”, also in Luxembourg, Petry stressed, to take action to protect the legal interests of life and health and the functioning of the healthcare system. For Petry, the basic approach of protecting the common good primarily through measures is not constitutionally objectionable. As to why the pandemic did not affect Luxembourg too much, this is a question for the scientific community. The government did not know which measures could actually contain the pandemic most effectively. With so much uncertainty, the law grants politicians a wide margin of judgement, Petry stressed. The Assistant Attorney General did not deny that it would have been better to have data. But when “the house is on fire”, immediate action is needed, Petry stressed. Fundamental rights that clashed with the rules had been “carefully balanced” by the government in terms of constitutional law. The right to life and physical integrity is not automatically “stronger” than all other fundamental rights, but the state must always balance them carefully. In his closing remarks, Petry called for punishment of the two accused men.

The two lawyers Christian Bock and Marc Kohnen took a more nuanced view: even in an ongoing crisis, the legal protection guarantee of the Basic Law applies. This means that anyone can always take legal action against measures that restrict freedom, thus also against measures to contain the coronavirus. The Constitution should function also in pandemic times. The restrictions on freedom must be coherent, said Kohnen. In this context, Me Kohnen cited Montesquieu: “Les lois inutiles affaiblissent les lois nécessaires”.

“Measures should be rejected on the grounds of unconstitutionality because the legislature has made a ‘manifest error of judgement’ with regard to both the necessity and the appropriateness and proportionality of the measures. Parliamentary documents show that ideas were developed to justify undefined and vague measures: a surcharge on the healthcare system, what is that, and when do we have one?

There are no figures (snapshots) to fall back on, the two lawyers emphasised. Experience has shown that the effects cannot be roughly measured. Without precise encoding, however, the figures are not objective, the defence lawyers said. They called for more transparency: Parliamentary documents show that the legislator decided on the judicial measures without seriously examining objective and quantified facts based on a comprehensible and transparent calculation framework: What was the situation in our hospitals? What is the extent of our national capacities and how high was the occupancy rate of our intensive care units? These figures have been available to the health system since the beginning of the crisis; according to the ministerial decree of 16 March 2020, hospitals must provide this information on a daily basis. This buried fact was never presented to Parliament, which resulted in arbitrary speculation at the time the measures were taken and an inability to make an effective assessment of the situation, the need, and the relevance of the measures”.

The question is not whether the measures are compliant, the question is whether we as a society can offer guarantees against standards being violated in the course of legislative work carried out under cover of an emergency.

In their closing statement, the defence lawyers asked the judges for a detailed analysis of the situation.

The judgement is scheduled for 30 September 2022.