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Monday, January 30, 2023

AUSTRIA: The 10 Critical Questions of the Constitutional Court to the Ministry of Health in the context of the Constitutional Review of the Covid Measures

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You may read this article in Greek here.

  • The Constitutional Court: Overview

    It is the responsibility of the Constitutional Court to monitor compliance with the Constitution. Through its function as a “Court of Fundamental Rights” and its competence to examine laws and regulations, it is particularly called upon to ensure the effectiveness of the democratic constitutional order and to secure its existence.

All public authorities and other institutions that perform state functions are obligated to comply with the Constitution. In the event of an (alleged) violation of the Constitution, the Constitutional Court has been established by the Federal Constitution as the body that has to make the final judgment and, if necessary, take remedial action. For this reason, it is often referred to as the “guardian of the constitution”.

As a rule, the Constitutional Court will only act upon request. The Federal Constitution stipulates when and who can appeal to the Court of Justice. The details are primarily regulated in the Federal Constitutional Law and the Constitutional Court Act.

  • Constitutional Judges: Overview

    The Constitutional Court consists of 14 constitutional judges: the President, the Vice-President and twelve other members. There are also six substitute members who have a say in cases where one of the members is absent for reasons of suspected partiality or illness. Although, as with all Constitutional Courts in the world, their appointment is also a political decision, the constitutional judges act completely independently upon taking office and not along party political affiliations.

According to protocol, the President of the Constitutional Court is equivalent to a federal Minister and the Vice-President to a state secretary. The ranking of the other members depends on their age, as well as that of the substitute members.

  • Organization: Overview

   Besides the President, the Vice-President, the 12 members and six substitute members, the constitutional judges are also supported by a staff of about 100 persons (scientific and administrative staff).

The main entrance of the Constitutional Court of Austria in Vienna (© Bild: SN/APA (ARCHIV/HOCHMUTH)/GEORG HOCH)
  • Judge’s Bench and Judicial Activities

  • Appointment and Composition

  The members and substitute members are appointed by the Federal President at the proposal of the Federal Government, the National Council or the Federal Council. The Federal Government prepares proposals for the President, the Vice President, six members and three substitute members. The National Council proposes three members and two substitute members; the Federal Council has the right to propose three members and one substitute member. While the National Council and the Federal Council are entitled to propose jurists of any profession (including lawyers or notaries working in business or in associations), the Federal Government may only propose persons who are judges, administrative officials or professors of a legal subject at university level. Three members and two substitute members must have their permanent residence outside the federal capital Vienna. This type of composition serves to ensure the plurality of viewpoints within the Supreme Court, both in terms of regional and professional, but also political and ideological background.

  • Jurisdiction

  The Constitutional Court is granted a wide range of differing competencies by the Constitution. These range from the review of laws and regulations to the review of findings of the administrative courts, from the judgment of certain jurisdictional conflicts to the resolution of financial compensation disputes, and from the electoral procedure supervision to the regulatory control of supreme organs of state. The specific rules of procedure are found primarily in Part Two of the Constitutional Court act, and sporadically in other laws.

In detail, the Constitutional Court decides on:

  • Complaints against findings of the administrative courts
  • Unconstitutionality of laws
  • Unlawfulness of regulations and reannounced public notices
  • Illegality of state treaties
  • Election challenges
  • Challenges to petitions for referendums, popular consultations, referendums and European citizens’ initiatives
  • Loss of mandates
  • Direct actions against territorial authorities on account of certain proprietary claims
  • Conflicts of jurisdiction
  • Competency evaluation
  • Disputes concerning parliamentary committees of inquiry
  • Indictments against organs of state

The most common procedures in terms of numbers are those relating to complaints against the findings of administrative courts and constitutional review of laws and regulations.

  • Procedure-The road to judgment

  • The Initiation of Proceedings

    At the beginning of each constitutional court proceedings is an “application initiating proceedings”, which depending on the type of procedure is referred to as a “complaint”, “application”, “direct action”, “election challenge” or “indictment”.

  • Preliminary Proceedings and Judgment Preparation

    After a case has been assigned, the existence of an absolute bar to proceedings, such as the jurisdiction of the Constitutional Court, the timeliness of a complaint or the authority to submit an application, as well as compliance with the legal formal requirements, are verified.

If an application has been made for the granting of legal aid or in complaint cases for applications for interim measures (suspensive effect), as a rule a judgment is made at this stage of the proceedings.

  • The Constitutional Judge
    Dr. Andreas Hauer

  • Identity

    Dr. Andreas Hauer was born on 2nd August of 1965 in Ybbs an der Donau. He attended schools in Steinakirchen am Forst and Wieselburg, where he graduated from the local grammar school BG/BRG Wiselburg in 1983. From 1983 to 1987 he completed his Master’s degree and then, until 1989, his Doctorate in law at the Faculty of the Law of the University of Vienna. From 1989 to 1990 he completed his compulsory military service at the 3rd Guard Company of the Guards Battalion stationed exclusively in the “Maria Theresa” Barracks in Vienna. After a short legal traineeship in Vienna (1990), he worked from 1990 to 1998 as an Assistant Professor at the Institute for Administrative Law and Administration of the Johannes Kepler University Linz with Professors Peter Oberndorfer and Bruno Binder and briefly as a trainee lawyer (1993). In 1998 the Johannes Kepler University in Linz awarded him as part of his habilitation with a habilitation thesis on the subject of “Peace, Order, Security„ and in 1999 he received the academic teaching license for “Public Law”. From 1998 to 2000 he worked as a research assistant to constitutional judges Prof. Dr. Siegbert Morscher and Dr. Claudia Kahr at the Constitutional Court.

Ιn 2000 he was appointed university professor for public law with special focus on Austrian administrative law and administrative eduation at the Institute of Administrative Law and Administrative Education of the Johannes Kepler University in Linz. Since 2002 he is also the Head of the Energy Law Department of the Energy Institute at Johannes Kepler University in Linz. Since 2014 he is the Vice-Chairman of the Human Rights Advisory Council of the Austrian Ombudsman Board (AOB).

Constitutional Judge Dr. Andreas Hauer (© Achim Bieniek)

On 1 March 2018, the National Council proposed Dr. Andreas Hauer as a member of the Constitutional Court as the successor of Rudolf Müller, who had retired from the Constitutional Court for age reasons. Dr. Andreas Hauer was the preferred candidate of Freedom Party of Austria (Freiheitliche Partei Österreichs-FPÖ) and Austrian People’s Party (Österreichische VolksPartei-ÖVP). Hauer’s proposal was met with vehement criticism from the opposition parties, who reproached him in particular of a quotation in a lecture in 2010 in which he called the European Court of Human Rights (ECHR) jurisprudence on deportations of foreign offenders as “jointly responsible for the multicriminal society”. Despite the criticism, Federal President Alexander Van der Bellen accepted the proposal of the National Council and appointed Andreas Hauer as constitutional judge. Mr. Van der Bellen said that although he did not share Mr. Hauer’s criticism of the European Court of Human Rights, substantive criticism of a supreme court was admissible by a law professor within the framework of the freedom of science. On March 7, 2018, he was then sworn by the President of the Constitutional Court, Brigitte Bierlein, as a member of the Constitutional Court.

Dr. Hauer is married and father of four children. Since December 2014, he has been a member of the Alemannia Vienna-Linz Corps, a student association at the University of Linz and other universities also in Linz. He is considered to be associated with the Freedom Party of Austria (FPÖ).

Dr. Hauser’s main areas of work and research are:

  • State and Administrative Action
  • Jurisdiction under Public Law
  • Energy Law
  • Environmental Law
  • Police Law
  • The Constitutional Court’s Document
    to the Ministry of Health

  • Case

  In the course of its review of the Covid measures, the Constitutional Court (VfGH) has now submitted questions to the Ministry of Health, which are available to Austria Press Agency (Austria Presse Agentur-APA).

First and foremost, the high court judges want to know how justified the regulations were, which included Lockdown and the 2-G rule, for example. It is also interested in a careful examination of the burden on the health system, to which the measures are certainly linked.

A number of complaints against the regulations has been received by the Constitutional Court, which resulted in, among other things, a Lockdown and the 2-G and 3-G rules.

Mandatory vaccination is also under scrutiny by the supreme court. It is a sensitive issue that the supreme court judges are dealing with.

In addition, hospitalization and death data should be analysed as accurately as possible and the distinction between ‘died with’ and ‘died due to’ Covid-19 must be justified.

Statue of Lady Justice (Iustitia) by South Tyrolean artist Emanuel Pendl in the main hall of the Palace of Justice in Vienna, Austria

The Constitutional Court is customary to address questions to the legislature as part of the constitutional review proceedings, and in this case also “in preparation for a possible oral hearing”.

The questions were submitted on 26 January and the Supreme Court judges were asking for information to be sent to them by 18 February.

Constitutional judge Dr. Andreas Hauer has been responsible for composing the detailed questions occasioned by the request of a Viennese law firm. It is the Stix law firm and namely its partner Ulrike Reisner. Only the law firm that initiated the review with its application has access to the case file and data. The questionnaire “went viral”. Its leak was not “approved” by the law firm, she says, emphasising that it is an official procedure. It is unusual for such a procedure to be in the public eye. That is how the applicant sees it as well.

Reisner and attorney Lothar Stix are actively involved in “Lawyers for Enlightenment” (Anwälten für Aufklärung), an organisation that has in the past spoken of a “Health Dictatorship” regarding the Coronavirus measures. According to Reisner, the law firm has filed three separate applications, all related to the Coronavirus rules. The same questionnaire had been transmitted by the constitutional judge two more times in the context of the applications’ processing.

For more information on the measures to protect public health and to limit the dispersion of Coronavirus that have been implemented in Austria as well as the measures in force, you may see here, here, and here.

  • The body of the document transmitted
    containing the entire questionnaire

DOCUMENT_(20-2-22)
  • Developments following the
    transmission of the document

   The action of sending the above document has received criticism from a small portion of the media because of the fact that it bears the signature of Dr. Andreas Hauer who, as mentioned above, is considered to be associated with the Austrian Freedom Party (FPÖ) and other similar and always related reasons to this alleged connection. From the time of the proposal for his appointment as a constitutional judge to the drafting and signing of the disputed document.

   The very questions of the questionnaire included in the body of the disputed document have also received criticism from a small portion of the mass media. The points on which the criticism seems -mainly- to be focused are the following:

  • That in the questionnaire, and specifically in question 1, reference is made to an article which calls into question the efficacy of vaccines, namely the article in the daily newspaper Die Presse of 11 October 2021 entitled “Vaccinated people also in hospitals: Do Vaccines Work at All?” (Auch Geimpfte im Spital: Wirkt die Impfung überhaupt ?) while there are, as stated, reliable scientific studies and there is no need for someone to resort to mass media reports, as well as that the Robert Koch Institute answers this question on its website and there is no reason to doubt it. Regarding the ”reliable scientific studies”, reference is made to the scientific article in The New England Journal of Medicine (NEJM) entitled ”BNT162b2 mRNA Covid-19 Vaccine in a Nationwide Mass Vaccination Setting”
  • That within the questionnaire, and specifically -also in question 1– the wording for the total number of recorded deaths ‘from or with SARS-CoV-2′, and moreover in bold font, is irritating and it is thus implied that the deaths may be due to other causes, an element which undermines the counting method
  • That the Constitutional Court invokes mass media articles and not scientific evidence and this is also demonstrated in question 7.2., where again the efficacy of vaccines is called into question, requesting to be informed about the reduction of the risk of severe disease from vaccines against Covid, for which there is talk of an up to 95% reduction in the mass media. Furthermore, that these data are admittedly already available to the general public
  • That the Constitutional Court invokes articles even when wording questions which concern issues that remain unanswered by science, such as question 7.4., a question with which it requests information on whether the protective factor of Covid vaccines decreases over time, an element which is reported in mass media articles, and with which it also requests more detailed information on the degree of protection at specific reference time points
  • That while the Constitutional Court invokes mass media articles, all of a sudden in question 7.6. with which it requests to be informed, among other things, about the extent to which vaccination against Covid reduces the risk of infection, disease and transmission of the SARS-CoV-2 virus it invokes scientific studies by stating in the introduction of the question that “According to the most recent scientific evidence it appears that people vaccinated against Covid can also become infected with SARS-CoV-2, contract Covid-19 and transmit SARS-CoV-2”

Finally, the in general wording of the questions is criticised and it is referred that it is such that does not demonstrate a sincere disposition to be informed but aims to present a specific opinion and even a prefabricated one. The criticism goes to the point of anticipating that the Constitutional Court will make a judgment which will not be based on the individuals whose lives and existence could be protected by the regulations.

    Certainly, the action of sending the above document has received much praise as well as the very questions with which the Constitutional Court requests information on important issues. The praise from mass media is not as strong as that of the citizens. Several citizens agree that the questions posed by the Constitutional Court are questions that largely and in all likelihood are concerning many thinking people, at least in the last few months, while the fact that the questionnaire drafting was undertaken by Dr. Andreas Hauer, who is believed to be associated with the Austrian Freedom Party (FPÖ), is not considered reprehensible.

  Whether the Ministry of Health will be able to answer these questions has been the subject of much debate, as well as how the Constitutional Court could act if it deemed that the Ministry’s answers were not sufficient, what is meant in the context of such a procedure as a “sufficient answer”, whether the government is obliged to allocate financial resources and to what extent in order to collect the data required for a “sufficient answer”. Finally, it is considered essential in the interests of Austrian democracy that the findings of the Constitutional Court at the end of the constitutional review procedure be incorporated into a “pandemic law” in order to regulate government action in similar situations in the future.

    Throughout the days, Health Minister Wolfgang Mückstein of the Green party (Die Grünen) has been occupied with various issues, such as the imposition of sanctions on those who are unvaccinated with effect from 15 March and the evaluation of the mandatory vaccination measure, while the government has announced that from 5 March all measures to protect public health and limit the dispersion of coronavirus will be lifted for everyone without exception.

Minister for Health Wolfgang Mückstein

    On February the 16th, in response to the question on how will the mandatory vaccination proceed, he did not want to make a political commitment. He again referred to the committee provided for by law, which must deliver its assessment from a medical as well as a legal aspect. On whether there are going to be controls and sanctions as of March 15, Mückstein said that “Based on the current perspective, yes.”

A few hours earlier, the government after consultations with the federal states governors and the National Co-ordinator for the Covid crisis (GEsamtstaatliche Covid-KrisenkoOrdination-GECKO) had presented the extensive opening steps.

According to Chancellor Karl Nehammer (ÖVP), all measures will be lifted on 5 March, except for “highly sensitive structures” such as nursing homes and hospitals.

    On February the 17th, the government’s committee of experts on the evaluation of mandatory vaccination was established.

    On February the 18th, the working method was discussed and the way to approach the issue was determined. At first, the medical experts will prepare the legal requirements chapter by chapter and the jurists will then draw conclusions on the implementation of the law based on the medical conclusions, as it was noted after the meeting responding to a question of the Austrian Press Agency (APA).

    In addition to the two doctors Eva Schernhammer and Herwig Kollaritsch, in the committee of experts for the evaluation of mandatory vaccination, the constitutional and medical law expert Karl Stöger and jurist Christiane Wendehorst are also involved. The committee should submit its first report by 8 March at the latest. Prior to his appointment to the committee, Stöger had proposed that vaccination should be mandatory only for certain professional groups. “This would have the advantage that it would be easier to register existing personnel.” he had said. Otherwise, the employer would have to check the possibility of someone having been employed in another sector. Besides health professionals, mandatory vaccination could also be imposed, for example, on kindergarten teachers, but for this to happen the law would have to change again.

The members of the Committee of Experts for the evaluation of mandatory vaccination. From left to right can be seen:
Prof. Dr. Herwig Kollaritsch (Medical Expert, Medical Specialist in Tropical Medicine, Hygiene and Microbiology, Member of the National Co-ordinator for the Covid crisis-GECKO)
Prof. DDr. Mag. Eva Schernhammer (Medical Expert, Medical Specialist in Internal Medicine, Professor of Epidemiology, Head of the Department of Epidemiology at the Medical University of Vienna, Member of the National Co-ordinator for the Covid crisis-GECKO)
Prof. Dr. Karl Stöger, MJur (Oxon) (Professor of Law at the Institute of Constitutional and Administrative Law at the Juridicum University of Vienna, Jurist Specialist in Medical Law, Member of the National Co-ordinator for the Covid crisis-GECKO)
Prof. Dr. Christiane Wendehorst, LL.M. (Cantab.) (Professor of Law at the Institute of Civil Law at the Juridicum University of Vienna, Member of the Bioethics Committee)

Vaccination expert Kollaritsch had stated in January that a postponement of the vaccination obligation to May would be feasible. However, the obligation must “clearly apply” before the beginning of the next autumn season. Schernhammer expressed a similar opinion a few days ago. The “arming” of the mandatory vaccination within autumn might be too late, as a certain time period has to elapse for the vaccine to develop its action.

  Regarding the answers to the Constitutional Court’s questionnaire, although the 18th of February was the deadline, the Ministry announced that the answers would be sent “on time”.

According to the assessment of the constitutional lawyer Heinz Mayer, the Ministry will not be able to answer all the questions.

    On February the 19th, after a radio interview of Health Minister Wolfgang Mückstein to the Austrian Press Agency (APA), a “clarification” was given by the station regarding the date of implementation of the sanctions on those who are unvaccinated, that Mr. Mückstein will evaluate from a political point of view any recommendations of the experts’ committee for a different date of implementation and will subsequently decide.

In the radio broadcast “Guest to the Journal” (Im Journal zu Gast) on the Ö1 network of Orf with the award-winning journalist Stefan Kappacher, Mr. Mückstein respondent on the control starting date of violations was referred to the current law “That it provides for three phases and in the second phase from 15 March sample checks will be carried out and anyone who cannot present a vaccination certificate will be punished. This is the current legislation and it remains so for this case.”

Nevertheless, the law also provides for the establishment of a committee which will at regular intervals evaluate the epidemiological situation and deliver its assessment from constitutionality aspect, the first of which will be submitted by March the 8th. When asked about the probability of overturning the 15 March deadline, Mr. Mückstein replied, “On 15 March we will enter phase two and subsequently phase three will come into force in accordance with the experts’ recommendations.”

In a written “clarification” after the interview, the Minister explicitly stressed that the law about mandatory vaccination provides flexibility with regard to the implementation of mandatory vaccination. The Committee will submit its report by March the 8th, he said. “If, in the context of this report, new recommendations come out regarding the start dates of the phases that the law provides for, then these will have to be evaluated from a political aspect and decision accordingly shalt be taken”, leaving open the starting date of the implementation of the controls.

  • Comment

   The Coronavirus measures were implemented by the Austrian Government by virtue of the Regulations adopted by delegation of the so-called ‘COVID-19 Measures Act’, which bears the distinctive title ‘COVID-19-MG’.

     In the files of the Regulations in which the legal bases that were taken into account by the legislature are included, there is, as referred in the Constitutional Court’s document, a special mention to the numbers of persons hospitalised with Covid-19 in common wards or intensive care units, as well as to the number of deaths. Presumably there will also be other data on the basis of all of which the Regulations on measures to protect public health and limit the dispersion of the SARS-CoV-2 coronavirus were drafted and institutionalised. Thus, the foundations of the edifice of the implementation of the measures are the data contained in the files of the aforementioned Regulations and which the Constitutional Court studied.

    The Constitutional Review of Laws and Regulations falls within the sphere of competence of the Constitutional Court and although “as a rule” it acts only upon request, this does not exclude carrying out an ex officio constitutional review. Such a by way of derogation involvement could -probably- be justified in the special case of Regulations, by virtue of which, measures which have a decisive effect on all aspects of human life are implemented. However, in this case this did not happen and the constitutional review proceedings were initiated in the “as a rule” manner within the processing of the application of the Stix Viennese law firm and namely of partner Ulrike Reisner.

    The fact that the Constitutional Court transmitted the disputed document to the Ministry of Health shall not make an impression since it is a common practice in the context of constitutional review. Neither shall the holding of an oral hearing, which may occur later in the proceedings in order for the Constitutional Court to give a ruling.

    The fact that the author of the document is Dr. Andreas Hauser does not mean that he is responsible for initiating the procedure. He is the author of the document and is acting on behalf of the Constitutional Court.

    All questions are critical and it is demonstrated that they have been drafted after substantial study. The language used in the original document is rigorous and precise. In addition to the basic distinction between ‘with Covid’ and ‘from Covid’, it is desired, for example, to separate the case of detecting SARS-CoV-2 virus in someone from the case of someone being sick with Covid-19 and showing symptoms. A distinction is made between the person “hospitalized due to Covid-19” and “hospitalized with SARS-CoV-2”.

There seems to be real willingness for an in-depth investigation. The Constitutional Court may at its own discretion invoke scientific articles, scientific studies, mass media articles, testimonials-facts and any other source of information in the context of constitutional review. Besides, it has a staff of 100 people among whom are scientists.

The presence of scientific collaborators does not mean that the Constitutional Court ought to know or to interpret all the available scientific evidence. The legislature that enacted the measures, which must have as their legal basis the scientific quintessence of the totality of the available data, and which (quintessence) will be distilled after the collection, study and judgment of these data, must know and interpret all the available scientific evidence.

    The Ministry of Health even by the 20th of February and while the deadline for submitting answers has elapsed, no evidence that is evidence of the drafting process of the answers to the questions has been in the public eye. It would be reasonable to have asked for at least some clarifications on the questions.

Minister for Health Wolfgang Mückstein

In any case, the Ministry ought to show some progress, and it may be showing it, but this it may not be known to the public as the case data is not provided to be made public and only the law firm has access. It is a wonder how the document containing the 10 critical questions was leaked. It was drafted by the Constitutional Court and it was transmitted to the Ministry of Health and the Stix law firm.

    The fact that since 5 March all measures have been announced by the government to be lifted for everyone without exception, but at the same time the debate continues and the possibility is left open that the implementation of compulsory vaccination will be activated from 15 March and that sanctions will be imposed on those who will not be able to show a vaccination certificate is contradictory.

    It is reasonable for one to wonder whether, in the case that the deadline set by the Constitutional Court is binding, sanctions are provided for the Ministry of Health and what kind of sanctions. Also, how is the Minister discussing issues such as the imposition of sanctions on the unvaccinated or mandatory vaccination or the government announcing that all measures to protect public health and limit the dispersion of Coronavirus will be lifted for everyone without exception, when the constitutional review proceedings of the Regulations of the measures has not been completed and the Court has not ruled. The lifting, continuation, tightening or relaxation of the measures is inextricably linked to the data reviewed by the Constitutional Court. How is it possible to waste man-hours and public money on the implementation of mandatory vaccination and the imposition of sanctions on the unvaccinated when the Constitutional Court has not ruled on whether these measures lack constitutional legitimacy? This would be rational -for example- in the case where the measures taken by the Ministry of Health are justified with certainty and in line with the Constitution. If this is the case then it already holds some of the answers to the Constitutional Court’s questions. At least, namely, those answers that relate to the data that form the foundation of the edifice of the implementation of the measures.

    In any case, the Ministry of Health should not reply with vague references and with mere citation of data relevant to the questions, as this does not constitute an answer that is complete and with clear justification. It is necessary to specify and interpret the data in order to ascertain the existence of the factual and legal situations in the light of which the adoption of the Regulations of the measures and, by extension, the by virtue of the Regulations implementation of the measures is justified. It must set out all the data in a specific and thorough manner, as well as the facts and their assessment, in order to justify the legality on the one hand and to demonstrate that the public interest is served on the other. It must be possible to deduce the factual basis, that is to say, the factual data on which the adoption of the regulations was based, and the purpose, that is to say, the intended effect. Complete or sufficient is the justification when it contains with clarity all its data in such a manner which leaves no gaps or doubts as to the correctness of the judgment of the legislature and not general and vague which can be applied in every case. A statement of reasons which is confined to the formulation of conclusions without stating the facts is defective. Mainly acts that are unfavourable to citizens must be justified. The need to state reasons for acts unfavourable to citizens is particularly urgent. By their very nature, all acts whose review is impossible or incomplete without stating the reasons which supported them, especially acts which are unfavourable, hence also acts which impose an obligation or abolish or restrict a fundamental freedom or other right, require a statement of reasons. The lack of a statement of reasons constitutes a breach of an essential procedural requirement of the act which leads to its nullity, since review of the legality of an act also constitutes the examination of the existence or non-existence of a statement of reasons when this is specifically imposed by law or required by the nature of the act. The statement of reasons has to be clear, specific and sufficient to be legitimate. Merely citing recitals does not constitute a legitimate statement of reasons, renders judicial review impracticable and leads to the annulment of the act.

Demonstrators hold flags and placards as they march to protest against the coronavirus disease (COVID-19) restrictions and the vaccine mandate in Vienna, Austria, December 11, 2021 (© REUTERS/Lisi Niesner)

   The proceedings is extremely interesting. This is also demonstrated by the fact that the questionnaire “went viral”. It has not been ascertained whether a constitutional review procedure has been initiated with regard to measures to protect public health and limit the dispersion of the Coronavirus in another country. The questions of the Constitutional Court are critical and it would not be an exaggeration to be described as ‘forbidden’ on a global scale. This proceedings may be the first in which a scientific dialogue between the Constitutional Court and the Ministry of Health will take place, a scientific dialogue that should be blossoming these days, but unfortunately is still being sought.

    As with all scientific issues, so too now, there are conflicting views. Many people believe that the prevailing scientific view is the projected view. This cannot be confirmed or invalidated with complete certainty as we do not know the views of all scientists, especially when the projection is selective or one-sided. The search for the non-projected view is extremely difficult in our time and therefore requires effort that the average citizen usually does not have the time or courage or even the willingness to do so and hence is very likely to adopt a view and make a decision that would be substantially different if -at least- he or she were provided with the same ease with information from the entire spectrum of scientific views. In a world governed by principles and values, this conversation would be non-existent. But that’s not our world, is it ? Our world seems like a world “without conscience”…

    In any case, the prevailing view is not necessarily the correct one. Not only in scientific issues but in any issue in general. Quantity does not prevail over quality. According to the well-known ancient Greek saying, which is a paraphrase of the saying of the piper Caphesias in the 14th volume of the 15-volume work entitled “Deipnosophistai” (The Dinner Sophists) of the ancient Greek Athenaeus from Naucratis of Egypt, and reads as follows: “goodness does not consist in greatness, but greatness in goodness” which in modern Greek is rendered as “the good is not found in the great, but the great is found in the good”, quantity does not ensure quality, but quality compensates for quantity. In other words, it is not the quantity (the great) that matters as much as the quality (the good). In general, this is something that is followed by many people. When we ask someone whom we have confidence in and consider trustworthy, honest and sincere: “Are you aware of a good gynecologist because we decided to have a child and… ?” or “Are you aware of a good lawyer who deals with… ?” or ” Are you aware of a good architect for… ?”, this implies that we implicitly accept that not everyone is good, and indeed that to find a good one and for the purpose we need him for requires to deal with it, to search and of course subsequently to decide whether he or she was really good so that we can keep him or her in mind and why not recommend him or her to someone else who will be in our shoes.

“Lomonosov in Germany. The scientific Debate.” Oil painting by Eugene Lanceray

    Certainly, it is very important that all views are heard and that there is an exchange of views. The “fermentation” among views contributes to providing more and “diverse” information, verifying, evaluating and judging it, and ultimately shaping the views of those who have not already formed one, or a new opinion for those who have the freedom, will and ability to reconsider. It is also important not to confuse science with religion. Religion is based on faith. On the other hand, doubt is essential for (real) science, which is constantly evolving. Richard Feynman (Nobel Prize in Physics 1965), wanting to distinguish the forms and procedures that are sometimes used in developing science from science itself, claimed that the scientific procedure produces “experts” without knowledge when it is followed without the spirit of science, which is to challenge the version of truth at the time which the “experts” claim. Further, that key role in science plays doubting the views of the “experts” and self-confidence in “common sense” and “natural intelligence”. According to Feynman, “Science is the belief in the ignorance of experts”.

    The answers of the Ministry of Health, the possible oral hearing, the judgment of the Constitutional Court, its reasoning and the developments that it will mark will keep unabated the interest of ordinary citizens but also of jurists, health scientists, medical experts, politicians in various countries where similar measures are implemented or have been lifted but were implemented. It is certain that the existence of a Constitutional Court that carries out constitutional review unhindered is of vital importance and a maximum safeguard of constitutional order.

The original document of the Constitutional Court of Austria which was transmitted to the Ministry of Health can be found here.

You may verify the authenticity of the document here.

  • References

01. https://www.vfgh.gv.at
02. https://de.wikipedia.org/wiki/Andreas_Hauer
03. Volksanwaltschaft, “Univ.-Prof. Dr. Andreas Hauer-Lebenslauf.” Volksanwaltschaft, Jan 16, 2014,
https://volksanwaltschaft.gv.at/downloads/6epon/Hauer%20Lebenslauf%20Stand%2015-01-2014.pdf
04. https://second.wiki/wiki/corps_alemannia_wien_zu_linz
05. Parlament, “Nationalrat nominiert Andreas Hauer als neuen Verfassungsrichter.”, Parlament, Mar 1, 2018, https://www.parlament.gv.at/PAKT/PR/JAHR_2018/PK0175
06. Orf, “VfGH stellt Fragen an Gesundheitsressort.”, Orf, Jan 30, 2022, https://orf.at/stories/3245593
07. Erich Vogl, “Entscheidende Phase: Nun muss Mückstein liefern.”, Kronen Zeitung, Feb 18, 2022, https://www.krone.at/2631201
08. Kosmo, “VfGH will Rechtfertigung für Impfpflicht & Corona-Maßnahmen von Mückstein.”, Kosmo, Feb 18, 2022, https://www.kosmo.at/vfgh-will-rechtfertigung-fuer-impfpflicht-corona-massnahmen-von-mueckstein
09. Kurier, “Corona-Beschwerden: Reaktion von Mückstein auf VfGH-Fragen unter Verschluss.”, Kurier, Feb 24, 2022, https://kurier.at/politik/inland/corona-beschwerden-reaktion-von-mueckstein-auf-vfgh-fragen-unter-verschluss/401916766
10. Der Standard, “Fragenkatalog des Verfassungsgerichtshofs zu Corona-Maßnahmen: Ein Formalvorgang geht ‘viral’.”, Der Standard, Jan 31, 2022, https://www.derstandard.at/story/2000132957841/verfassungsgerichtshof-prueftcoronamassnahmen
11. Sebastian Reinfeldt, “Die Covid-Fragen eines Sideletter-Richters.”, Semiosis, Jan 31, 2022, https://www.semiosis.at/2022/01/31/die-covid-fragen-eines-sideletter-richters
12. Orf, “Mückstein verteidigt Öffnungsschritte.”, Orf, Feb 16, 2022, https://orf.at/stories/3247718
13. Erich Vogl, “Entscheidende Phase: Nun muss Mückstein liefern.”, Kronen Zeitung, Feb 18, 2022, https://www.krone.at/2631201
14. Oe24, “Impfpflicht: So entscheidet die Expertenkommission.”, Oe24, Feb 18, 2022, https://www.oe24.at/coronavirus/impfpflicht-so-entscheidet-die-expertenkommission/511061433
15. Kleine Zeitung, “Verwirrung|Mückstein lässt offen, ob Ungeimpfte ab März bestraft werden.”, Kleine Zeitung, Feb 19, 2022, https://www.kleinezeitung.at/politik/innenpolitik/6101452/Verwirrung_Mueckstein-laesst-offen-ob-Ungeimpfte-ab-Maerz-bestraft

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