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The antigen test is only a snapshot and is therefore not adequate to justify restricting freedom of movement for a whole week. According to Müller, a statutory vaccination requirement, which the government has repeatedly excluded, could, however, be constitutional.
5 am, December 30, 2020
Planned “freestyle” could be unconstitutional, warns former Constitutional Judge Rudolf Müller. To improve the test, the antigen test must have an effect comparable to blocking. But it only provides a snapshot of the viral load. Therefore, it is not able to objectively justify freedom of movement for a whole week. According to Müller, under certain conditions, a vaccination requirement could be completely constitutional.
Since From January 15 to 17, the massive tests must return will be offered, and who participates must be able to go to the stores and restaurants that will later reopen from January 18. All others have to comply with the lockdown rules until January 24, the government announced when the third lockdown currently in effect was announced. However, the legal regulation will not be presented until next week.
The promising challenge
In case a free test with the antigen method is actually envisaged, a challenge in 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 “test week free “from the deadline.
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.
Viral load could be higher 24 hours later
Because the “negative” in the antigen test only says that the viral load at the time of the test is so low that it is not expected that other people will be infected. Just 24 hours later, it could have grown to such a point that the person being tested could further spread the disease.
One – but repeatedly excluded by the government – regulatory vaccination However, according to Müller, it could well 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.
EU coordination
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 legally Relief for vaccinated people grant. 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.
