StGH judgment: 2G obligation unconstitutional – Liechtenstein
VADUZ – Unlike the 3G obligation, the 2G obligation, which applied in Liechtenstein until February 18, violated the constitution and applicable laws. The mask requirement for children from the age of 6, on the other hand, was legal. In addition, the State Court of Justice (StGH) came in a judgment published on Tuesday.
In January, another norm control application was submitted to the State Court of Justice (StGH) with the corona measures: 444 people applied for an examination of the constitutional and legal compliance of the Covid 19 ordinance of December 15, 2021 – at that time the 2G certificate obligation was introduced. Only those who had been vaccinated or those who had recovered had access to many public areas. The regulation expired on February 17, 2022. For this reason, the State Court of Justice had only determined retrospectively whether or not this regulation was constitutional or compliant with the law.
With the published on Tuesday Judgment of May 10, 2022 the StGH decided that the 2G obligation was indeed unconstitutional and unlawful on the basis of a specific legal basis.
Test alternative field away
Several people from the ranks of the opponents of the measure have already approached the State Court of Justice, at that time it was about the 3G regulation. However, the court regarded this as only a slight encroachment on fundamental rights. The StGH referred to the existing alternative courses of action – instead of a vaccination, a negative test was also accepted. With the 2G regime, these alternatives will disappear. According to the StGH, this has unnecessarily increased the pressure on those who have not been vaccinated. “It was now a much greater interference with the freedom of movement of unvaccinated people,” said the StGH on Tuesday.
Pressure on unvaccinated was increased
In addition, the State Court of Justice considers the legal-political explosiveness as a further criterion for assessing the question of whether there is a sufficient legal basis for an ordinance. Even if the 2G regulation still does not include compulsory vaccination, the pressure has increased significantly due to the elimination of the test alternative. According to the StGH, this increased the feeling of exclusion from the rest of society among the affected part of the population.
In its statement, the government referred to the complexity and dynamics of this regulatory area, which was also taken into account in the 3G judgment at the time. According to the StGH, this criterion can only be of limited importance in the present case. “Because while in the first and middle phase of the pandemic the uncertainty and the dynamics in the regulatory area of the Covid measures and the time pressure were extremely great, the scope for the involvement of the legislator subsequently gradually increased,” the court said. It referred, for example, to the measures to cushion the economic impact: Here the legislature deviated from Swiss legislation as early as the spring.
Legal basis is missing
“Even if the pandemic is an exceptional situation in various respects, constitutional principles such as the principle of legality and the protection of fundamental rights in general must not be gradually weakened and thus permanently weakened,” the statement continues. Unlike at the beginning of the pandemic, it might have been possible for the legislator to create a specific legal basis for the 2G regime before the regulation was amended, according to the StGH. This was the case in Austria, for example.
Apart from that, however, the StGH emphasizes that the 2G regulation obviously fulfilled the other fundamental rights encroachment criteria of public interest and proportionality. Moreover, due to the close ties with Switzerland, a different corona policy from Switzerland would not have been practicable at all.
Mask requirement for children’s martial law
The mask requirement had caused protest. (Photo: Michael Zanghellini)
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The mask requirement had caused protest. (Photo: Michael Zanghellini)
In contrast, the obligation to wear masks for children over the age of 6, which was also introduced in mid-December, was both constitutional and legal, the StGH came to the conclusion. The court does not question the government’s assessment that this was suitable and proportionate to contain the corona virus. This view would also correspond to the prevailing scientific opinion.