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To improve the test, the antigen test must have an effect comparable to blocking. In fact, it’s just a snapshot of the viral load, says former constitutional judge Rudolf Müller.
The “free trial” planned by the turquoise green federal government could be unconstitutional, warns former constitutional judge Rudolf Müller. To improve the position of the examinees, the antigen test should have an effect comparable to blocking. In fact, it only offers a snapshot of the viral load. It is not able to objectively justify freedom of movement for a whole week, but according to Müller, under certain conditions, a vaccination requirement could be completely constitutional.
The background: From January 15 to 17, mass tests will be offered again, whoever participates and obtains a negative result should be allowed to go to the shops and bars that will reopen from January 18. Everyone else must comply with the lockdown rules until January 24. The government promised this before Christmas when the third closure currently in effect was announced. However, the legal regulation will not be presented until next week.
In case a “free trial” with the antigen method is envisaged, a challenge to the Constitutional Court would be very promising, according to Müller, but this would not change the matter, because the VfGH could only decide after the “free trial week “according to the term.
Müller pointed out that the test certificates, which are obtained in Vienna with a negative result, expressly state that they are only valid for 24 hours. Therefore, it could not be argued that distinguishing between tested and untested products, for example when entering restaurants for a full week, is an adequate method of keeping infection numbers low. Because a “negative” on the antigen test only indicates that the viral load at the time of the test is so low that it is not expected to infect other people. Just 24 hours later, it could have increased so that the person being tested could spread the disease even more.
According to Müller, a statutory vaccination requirement, which the government has repeatedly excluded, could, however, be constitutional. Some prerequisites must be met: It must be scientifically proven that there is no other way to control the corona pandemic. And there should be no lighter means of getting rid of this life-threatening disease.
That’s probably the case, because it would take a long time to develop massive immunity and thus cost many lives, and there is no prospect of a drug to treat the viral disease. This means that an invasive procedure such as a vaccine that is not harmful to health could be mandatory. However, Müller noted, coordination at the European level would play a central role: a vaccination obligation that only applies in isolation in Austria, if open borders are kept, would hardly be adequate to effectively contain the spread of the virus and Therefore, it would not be justified as a violation of fundamental rights.
It would be more difficult to provide legal help to vaccinated people. In any case, that would require proof that they do not transmit the virus. Furthermore, it would be necessary to proceed differently, because this question arises differently for vaccinated customers or vaccinated distributors and their employees. Fully immunized people (including non-contagious ones) would have to be exempted from any subsequent blockage to the extent that their activities cannot cause third parties to form groups. Because in this regard a restriction of freedom of employment and movement would no longer be objectively justifiable, Müller claimed.
Willi: After the second round of massive testing, it should end.
Meanwhile, the mayor of Innsbruck, Georg Willi (Greens), has called on the government to end the second round of massive testing from January 15-17. Then it is important to focus on persuading vaccination and subsequent “mass vaccination,” he said Wednesday.
(APA / Red.)
