Karlsruhe rejects application: Not biased in the Corona procedure

Was it permissible for the judges to meet with the government? The Federal Constitutional Court has rejected allegations of bias in connection with the Corona emergency brake.

Time and again in the course of its history, the Federal Constitutional Court had to decide whether individual judges in its house could be biased. Most of the time, the senates came to the conclusion that there was no problem with this in the respective proceedings.

And so it is this time too. The judges of the first senate do not consider their president and a fellow judge to be biased in the proceedings on the federal emergency brake.

In September, the court received an application for bias due to a meeting of all 16 constitutional judges with the federal government on June 30th.

And that wasn’t the first bias motion. When the joint dinner of the most important German court with those who are actually supposed to control it became known in the course of the summer, the AfD directly filed a bias application in July – but in connection with a different procedure: It was not about the federal emergency brake, but about statements by the Chancellor on the Thuringia election.

The Constitutional Court rejected this bias request a little later. The regular meetings are an expression of the respect between the constitutional organs. And the judges are constantly dealing with disputes that involve the government and its actions.

What the court did not explicitly mention, but what was also important in this context: that there was not only a meeting with the federal government in June, but also one with the parliamentary group chairmen of the Bundestag, in which the AfD did not take part, but could have attended .

Lecture topic reason for application

So now there was the second bias motion in September, this time from a Berlin lawyer who, according to his own statements, is conducting proceedings for members of the Free Voters in the matter of the federal emergency brake. The background: lectures were given at the dinner, both by the Federal Minister of Justice and by constitutional judge Susanne Baer. And these lectures had the main topic “Decision under uncertainties”. They were recognizably aimed at the Corona crisis.

Everything looks as if the President of the Court, Stephan Harbarth, has put this topic on the agenda. And that is strange for those who have turned to the court about the curfew: that the court discusses this issue with the government in camera, while there is not even an oral hearing in which the plaintiffs can express themselves could.

“Abstract and timeless” theme

However, the Constitutional Court has now also rejected these bias motions from September: The fact that there was no oral hearing was no indication that President Stephan Harbarth was not impartial. The chosen topic “decision under uncertainties” is abstract and timeless. It indicates a constant problem for the court. Because uncertainties have also shown in other proceedings, such as climate change or the development of interest rates.

Judge Baer’s lecture that evening was just as abstract. General legal considerations are allowed for the judiciary, such as in scientific articles.