Researcher of the Month: The pandemic and the rule of law

The COVID-19 pandemic led to restrictions of fundamental rights, also in Austria. The various lockdowns brought public life to a standstill in many areas and, in the private sphere, people were not allowed to go about their lives as usual. The freedom of movement, the protection of people’s private and family lives, the freedom of employment, the right to education, the freedom of assembly, the freedom of religion, and the freedom of the arts: There is hardly a fundamental right that was not restricted by the various measures taken to combat the pandemic. Professor Katharina Pabel from the WU Institute for European and International Law investigates these issues and has analyzed the relevant decisions of the Austrian Constitutional Court in detail.

“In hindsight, it seems doubtful that all the measures taken were proportionate in how they restricted fundamental rights. Many of the corresponding government ordinances and laws have been reviewed by the Constitutional Court to assess their constitutionality, and some of them have been declared unconstitutional,” says Professor Pabel.

Violations of fundamental rights with a lasting impact?

After the official end of the pandemic, it is now possible to subject the individual COVID-19 restrictions to close scrutiny and assess them with a view to fundamental rights. How has the rule of law coped with the pandemic and its challenges? Have our fundamental rights suffered lasting damage? Katharina Pabel’s research focuses on an analysis of the Constitutional Court’s rulings on the various laws and regulations enacted to deal with the health crisis and all of its consequences. How effective was the Constitutional Court’s fundamental rights review? Did the effects of the review gain traction despite the rapidly changing legal situation? How did the Constitutional Court take into account the special challenges of government intervention in times of a pandemic, especially the urgency of the measures taken and the considerable uncertainties about the further course of the pandemic and the effectiveness of individual measures? Which anti-COVID-19 measures not only limited our fundamental rights but also violated them? “When it comes to particularly vulnerable groups, such as children and young people, the elderly, people suffering from illnesses, and those in need of care, the impact of the anti-COVID-19 measures may have resulted in negative effects that were disproportionate,” Katharina Pabel points out.

The analysis of the Constitutional Court’s decisions forms the basis for addressing a more general question: How did the Austrian system of the rule of law, which is supposed to ensure the effective protection of fundamental rights, perform during the pandemic, also compared to other European countries? Addressing these questions not only help us to reevaluate past decisions. Clarifying these issues can also make the system of the rule of law more resilient to future health and other crises.