Passenger car not a public space in the sense of the Corona ordinances, AG Reutlingen, decision of 09.12.2020
Following the restrictions imposed by the Corona ordinances of the federal states, the first courts are now having to deal with the corresponding administrative offenses.
In the present case, the charge is that of being in public space with more than the permitted number of people – inside a passenger car. The question arises whether a (private) car can be counted as part of the public space or not. The Local Court of Reutlingen ruled on this in its decision dated December 9, 2020, Ref. 4 OWi 23 Js 16246/20, correctly denied. Accordingly, no misdemeanor was found and the court dismissed the case:
“The person concerned was accused of violating § 3 para. 1 sentence 1 of the Ordinance of the State Government on Infection Control Measures against the Spread of the Virus SARS-Cov-2 (Corona Ordinance – CoronaVO) by being in public space with more than one other person, namely three other persons, who were not members of his own household. According to the report of the fine, the person concerned was in a private car with other persons, all of whom had a different place of residence.
[…]
The alleged facts probably do not constitute a violation of § 3 para. 1 sentence 1 of the Corona Ordinance. However, the common stay of five persons in a private car does not constitute a stay in public space. Public space in the sense of the Corona Ordinance is the public traffic area as defined in § 2 LBO, public transportation (train, bus, cab) or public buildings insofar as they are accessible to the public, but not private living quarters or other areas clearly delimited from the public space (private garden, terrace, etc.). A private vehicle such as the car used in this case is not to be assigned to the public space because, unlike a means of public transport, it is not accessible to the public. Access to a private car is determined exclusively by the car owner and / or the car driver according to its purpose of use as well as according to the view of traffic (see: AG Stuttgart, decision of 08.09.2020, 4 OWi 177 Js 68534/20). Outside the public space on 15.05.2020, however, was a gathering of up to five people regardless of kinship relations or a domestic community under § 3 para. 1 sentence 1 in conjunction with Para. 2 CoronaVO BW in the current version 09.05.2020 probably allowed.”
In addition, the court still deals with the constitutionality of the underlying ordinance and concludes that such restrictions of fundamental rights may only be enacted by the legislature with the consequence that the ordinance is unconstitutional:
“There are considerable doubts here, at the latest with the new version of the IfSG and creation of § 28a IfSG, about the constitutionality of the CoronaVO BW applied by the fining authority.
It is precisely not the subject of the procedural act that only imperatives relating to the general freedom of action or violations communicated accordingly are. In addition, the freedom of assembly is at least probably affected, and certainly, according to the submissions of the person concerned and the files, the freedom to exercise one’s profession and the freedom of movement.
There was no sufficient enabling basis for the prohibition on which the penalty notice was based, although this cannot be considered “cured” or “surmountable” – for constitutional reasons – simply because of the epidemiologically indisputable(!) meaningfulness of the measures. This applies a fortiori to the subsequent fine proceedings, with an intervention content increased by the sanctioning, beyond the mere restriction of freedom by a concretizing official order, irrespective of the formal legality of the Corona Ordinance and enforceability of the requirements at the time of the incident. The decision of the AG Dortmund, Urt. v. 02.11.2020 – 733 OWi – 127 Js 75/20 – 64/20, not legally binding, may be referred to.
The Corona Regulation in force at the time of the incident failed to recognize the importance of the parliamentary reservation and the requirement of certainty. The parliamentary reservation not only obligates the federal legislature to make essential regulations itself that are decisive for the realization of fundamental rights and not to leave them to other norm makers or the executive. The principle of certainty requires that a norm be formulated in such a way that the behavior of the authorities is limited in terms of content, purpose and extent, and that the courts can use this standard to control the actions of the authorities. These requirements are all the stricter the more intensive the encroachment on fundamental rights that the provision is intended to enable. These reasons have also led to the amendment, reformulation and adaptation of the IfSG and a decision by the parliamentary legislature on 18.11.2020. The doubts about the legal practice of the executive branch that became known during the legislative process and in the committees, and the standpoint of the parliamentarians that was communicated during the discussion, confirm the concerns of the court, which is called upon to exercise independent control, including constitutional control, due to the mere ordinance character of the facts and of the penalty.
The prerequisite for action by the competent authority in accordance with the applicable §§ 28 ff. IfSG is – as is usual in hazard prevention law in the narrower sense – a concrete danger, which is then combated selectively in a concrete individual case. There must necessarily be an individual connection between the dangerous situation and the addressee of the measure. This concrete, individual reference is lost if an epidemic is combated across the board and, for example, community facilities are closed without a disease outbreak having occurred locally, or if a blanket quarantine requirement is imposed on travelers returning from so-called risk areas. In these cases, the existing provisions are overstretched because there is no concrete danger that can either be attributed to an individual person or that is to be averted by recourse to a non-disturber (for example, by prohibiting a healthy person from visiting a sick person, cf. BT-Drs. 8/2468, p. 27). Rather, the measures respond to a diffuse infectious event that can no longer be traced to individual dangerous behaviors. If the general public is subsequently addressed across the board, as happened during the Corona pandemic, it is no longer a matter of hazard prevention in the narrower sense, but of risk prevention.
The law on the “Enactment of Measures to Protect against Infection in the State of Baden-Württemberg” is only dated July 23, 2020 and does not contain, which is admittedly not important, any regulation concretizing the content or intervention, even in the sense of § 80 V GG. Only the citation requirement is probably satisfied and a rather simple “information procedure” for parliamentary control is provided for.
The legal opinion expressed in some cases by administrative courts in summary proceedings (e.g. OVG NRW, 13 B 1635/20), according to which in the context of “unforeseen developments” it may be necessary for “overriding reasons of public welfare” to close unacceptable “serious regulatory gaps” for a transitional period, in particular on the basis of general clauses, is not tenable for factual reasons and under constitutional law.
On the one hand, various pandemic plans in the past decade, which were apparently not or only partially implemented, prove that a COVID19 pandemic was by no means an unforeseen development. An omission of the legislator, of course, never bears an encroachment on fundamental rights, especially if, as in the present case, the sufficiently specific formulation of the statutory general clause and subsequently the ordinance was neglected or neglected, which is why the norm addressees or persons affected by the norm were not informed about the legal situation. could have been in doubt as to which concretization of the statutory general clause (in the incident situation to be decided here) should be given.
Moreover, the protection of legal interests and the ability of state bodies to act are and always have been guaranteed by the formal legality and provisional enforceability of executive law. Nevertheless, deficiencies in the legal basis may not be perpetuated later, even unseen, in fine proceedings.
In terms of legal logic, the explanations suffer from the fact that the legislator was at liberty, as other areas and the new version in November 2020 show, to define the general clause more precisely or at least to carry out the necessary balancing. Corresponding indications in the legislative materials of the IfSG are rare, especially since the legislator has adjusted the general clause from the Federal Epidemic Diseases Act by a few standard examples (“bathing establishments” or “communal facilities”, cf. § 28 BSeuchG).
On the other hand, the parliamentary reservation – at least in the “non-participatory”, repressive area – does not have a temporal component or a dynamic design. If a temporal moment is discernible in the interaction of the powers, it goes hand in hand with the Federal Constitutional Court’s monopoly on the rejection of laws. The ordinance in question does not participate in this either in substance or constitutionally. The possibility for the executive branch to issue regulations is accompanied – probably for good constitutional reasons – by a general condemnation competence of the courts, which in turn does not and cannot know the possibility of granting legislative transition periods.
The parliamentary reservation is required and directly triggered by the actual and legal consequence of the state (fundamental right) encroachment, i.e. the intensity of the encroachment and the fundamental right affected and its limits. On the other hand, it does not depend on the abstract duration of the intervention or on the “state of knowledge” of the legislator (which can ultimately only be arbitrarily determined from the perspective of the separation of powers) or on a well-meaning and, in the present case, undoubtedly constitutionally permissible and even required intervention objective, as expressed by the executive protective measures since the beginning of the COVID-19 pandemic. It is precisely this objective that is only accessible to judicial review to a very limited extent and quite indirectly via the principle of proportionality, which must respect the legislature’s prerogative of assessment. It should be made explicitly clear that the expediency, proportionality and objective of the measures taken by the state government, insofar as they play a role in the proceedings here, are not objected to for this reason alone.
However, the strict parliamentary reservation must apply all the more in the fine proceedings, at the latest, since already in March 2020 legal changes and regulations, for example in the area of the Code of Criminal Procedure or civil law, took place quickly and were possible without the aggravations assumed by the Administrative Court having prevented action by the legislature, whereby in some cases very serious restrictions on freedom were adopted by federal legislators or fundamental judicial rights were affected.
Since the authorization to intervene with the Corona Ordinance was itself too vague and probably unconstitutional, a violation subject to a fine can likewise not be justified on the basis of the principles developed by case law on “administrative-accessory” criminal and administrative fines. Here (and as a rule), there is already a lack of a concrete-individual administrative decision with factual effect and, what is decisive, of the substantive legality of the basic norm.”
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Günter Grüne
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Fachanwalt für Verkehrsrecht
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