The federal government has defended the nationwide school closures in spring 2021 before the European Court of Human Rights (ECtHR) as lawful. This emerges from a 54-page statement that is available to WELT AM SONNTAG. In it, the Federal Ministry of Justice answers a catalog of questions that the court had delivered in December last year.
The proceedings are based on a complaint by the two lawyers, Axel Koch and Bernhard Ludwig. You represent several German children who were unable to go to school in April and May 2021 due to the so-called “federal emergency brake”. From a seven-day incidence of more than 100, alternating classes had to take place according to the law, from 165 face-to-face classes were prohibited.
The FDP had sharply criticized this measure because of its generality and, like Ludwig and Koch, had appealed the “federal emergency brake” – unsuccessfully – to the Federal Constitutional Court; now she provides the Federal Minister of Justice, whose house was responsible for the preparation of the statement.
The letter, dated April 26, begins with the indication that the German corona measures are currently being scientifically and politically processed: “In retrospect, some measures are viewed critically and some are even rated as incorrect,” it says. Due to learning deficits and the “impact on the psychological well-being of the students, the full extent of which is only now becoming clear”, this also applies to restrictions on face-to-face teaching.
Nevertheless, according to the federal government, it cannot be concluded that the school closures violated human rights. “The legal processing of the pandemic follows a different standard than the scientific and political ones: the decisive factor for the legal analysis is how the situation was at the time the reproached measures were taken,” said the ministry. At that time, “in an extraordinary and dramatic situation, decisions had to be made on an uncertain factual basis”.
The burden on the students added up because there had been teaching restrictions for months before the “federal emergency brake”. The renewed school closure was justified because of the emergence of new virus variants. The complaint must therefore be dismissed.
The legislature, it is said, had a wide discretion. As justification, the federal government refers to the lack of consensus in other European countries: In every country, the infection process was different and the experiences from previous pandemic waves “were also interpreted differently”.
In addition, there was an open and serious discussion in Germany to weigh up the interests involved. As an example, the government cites critical speeches by members of the Bundestag before the “federal emergency brake” was passed, but also the decision of the Federal Constitutional Court, which carried out a “strict and conscientious” examination of the school closures.
According to the government, the school closures were not only bad: Building on positive experiences with distance learning during the pandemic, efforts are currently being made to develop new forms of teaching. The alternating lessons were also perceived “not exclusively as a necessary evil, but also as a fundamentally interesting model of teaching” because the smaller groups allowed for better individual support.
The two lawyers welcome WELT AM SONNTAG that the federal government is finally admitting mistakes. “However, the government wrongly believes that it can freely decide on the distribution of burdens to the detriment of the most defenseless in society, although the minor role played by children in the infection process and the high extent of the damage caused by school closures were already known at the time,” said Koch and Ludwig. The two hope that the European Court of Human Rights will work towards the government having to take existing evidence more into account in the future.