Mr. Di Fabio, you are not only observing the crisis from the outside, you are sitting on the Corona Commission of the North Rhine-Westphalian state government. Do you actually know which strategy the federal and state governments are currently pursuing in the fight against the virus?
UDO DI FABIO: Of course I can’t look into the heads of the key players. In my opinion, it is still a matter of curbing the spread of the virus so as not to overwhelm the capacities in the health care system – thank God now, as a precautionary measure – and of course generally to reduce the risk of death and serious illnesses.
One has the feeling that the data base on which the politicians make their decisions is not clear. Aren’t we making very far-reaching decisions based on data that no one knows if they are true at all?
That is so – and above all it was until the end of March and beginning of April. In the meantime, science is gaining a somewhat clearer picture, leaving gaps. There are estimates that the number of unreported cases is between five and ten times the number registered. The long-term medical consequences are also still unclear. Dealing with unsecured factual bases is a special case for law; we are talking about risk decisions. In the right to avert danger, the state may act even if a major damage event only seems possible on the basis of indicators. Rational politics almost desperately look for reliable assessment bases that science cannot always provide.
This is not a friendly judgment on our scientists.
Science basing is out of place. Science takes time and reliable data. If there is an impression that science can provide a clear factual basis at the push of a button, then disappointments are inevitable. The Robert Koch Institute is not responsible for the chronology of the pandemic or the pitfalls of the virus. But we as a society have got used to a high level of reliable knowledge and are all the more surprised when statements from the mouth of experts vary. First in January and early February, for example, the route of infection and the risk of infection could not be correctly assessed, although the proportions of cover-ups under government responsibility should also be critically examined at the WHO level in a quieter hour. A lot is still unclear. This is to be expected in the event of a new pandemic threat. We then act nolens volens on an initially fluctuating scientific foundation.
Not even the scientists agree on this.
Yes, society also gets different assessments from virology. We should be very sober about it. An open scientific knowledge process knows different opinions and cannot always work with coordinated press releases. Of course, it is irritating when parameters that were taken up yesterday as a decisive yardstick seem less important today. But all of this is also a scientific learning process. One should not cling to the belief in children: there are the clever virologists who, like parents, now tell us exactly what we have to do. Political decisions are called for when there is a need to act on the basis of unsecured facts.
But isn’t there exactly this belief in children in virologists? We have this Mr. Drosten, who seems to be a very intelligent person – but whose assessments now make decisions that would have been unthinkable in the entire history of the Federal Republic. Which authority controls what is happening there?
The Robert Koch Institute and scientific research only advise. You decide nothing. However, we know the concept of a factual binding effect in administrative law. This means that what experts say has no legally binding effect, but politics can only ignore it for good reasons. Because otherwise she threatened to lose her rational justification. For example, the federal and state governments could decide tomorrow that they should consciously abandon protective measures in order to achieve herd immunity more quickly. Since the RKI, many other experts like Mr. Drosten would probably say that it does not work that way and to say the least it is a very risky game. There may be fatalities that would otherwise be avoidable. That is why politics will not simply ignore the assessment of scientific expertise.
But the decision could be made by politics.
Yes, at least to a certain extent. At some point, the duty to protect life and human health might be violated.
Can fundamental rights be so far-reaching and probably permanently restricted on this uncertain basis?
Yes, assuming an impending health catastrophe, but after this situation has subsided, the answer is no. The lockdown was not based on speculative assumptions. There was growing evidence over the course of March of how dangerous and treacherous this virus is. We saw a dramatic health system overload in Italy, France and parts of the United States. These are all hard facts. The consequences, however, the question of how the pandemic develops, whether there is a risk of exponential spread, how high the mortality rate and ultimately also the mortality rate compared to other years – we do not yet know all of this. In such a situation, such far-reaching measures can be taken in the face of threats to such high-ranking legal goods as the life and health of citizens. In the event of an impending health catastrophe, such a far-reaching and extensive interference with fundamental rights is justified. That is the yes.
And the no?
The no refers to how long you can do this and under what conditions. Today we are in a second phase, in which there is no longer any threat of an exponential spread of the virus and a dramatic overload of our health system for Germany, but also in many other countries. But there is still a significantly increased epidemic risk situation, also with the danger of further waves of infection. In this second phase, the first rulings of the principle of proportionality and of the principle of equality are already noticeable in the case law, for example in the case of hopefully still cautious easing measures.