Definition and Principles of Movement Restrictions
Movement restrictions are government-imposed measures that partially or completely limit the fundamental right of individuals to leave their homes or residences. They are typically enacted through a regulation, a law, or, more rarely, through an individual order, and regularly serve to protect public health, public safety, or maintain public order. Movement restrictions count among the most significant intrusions into general freedom of action and affect fundamental rights, namely the right to freedom of movement, physical integrity, and general freedom of action.
Legal Basis and Constitutional Classification
General Legal Foundations
The authority to impose movement restrictions is derived for the executive from specific statutes within the relevant area of law. In Germany, for example, the possibility to impose movement restrictions was created above all by the Infection Protection Act (IfSG). Additionally, in individual cases, the police law of the federal states or hazard prevention law may be applied where other particularly important public interests are affected.
Fundamental Rights and Constitutional Limitations
Movement restrictions constitute a direct interference with several fundamental rights. Chief among these are:
- General freedom of action (Art. 2(1) Basic Law)
- Freedom of movement (Art. 11 Basic Law)
- Inviolability of the home (Art. 13 Basic Law), indirectly
- Freedom of assembly (Art. 8 Basic Law), insofar as public places are visited jointly
Any interference with a fundamental right requires a legal basis and must be proportionate in each individual case. The measure must be suitable, necessary, and reasonable (proportionate in the strict sense). According to the principle of essentiality, issues involving significant restrictions of fundamental freedoms must be decided by the legislature.
Forms of Movement Restrictions
General versus Targeted Movement Restrictions
- General movement restrictions apply to all persons within a defined area, such as a municipality, district, or federal state.
- Targeted movement restrictions are directed at specific groups of people, e.g., infected individuals, suspected cases, or contacts within the context of a quarantine order.
Difference from Curfews and Contact Restrictions
The term movement restriction is to be distinguished from curfew und contact restriction :
- Movement restrictions typically permit leaving the home only for valid reasons (such as work, shopping, medical care, exercise outdoors).
- Curfews completely or almost completely prohibit leaving the home, with very few exceptions.
- Contact restrictions limit the number or group of people with whom individuals may meet outside of their own household.
Requirements and Procedure for Ordering
Statutory Authorization
Precise statutory authorizations are required to lawfully order restrictions. As an example, the IfSG (§ 28a) provides the option to order extensive restrictions in the event of a national epidemic situation.
Formal Procedure
Implementation is generally carried out through statutory ordinance, general administrative orders, or individual administrative acts. The requirements for legality include:
- Clarity of the regulation
- Statement of reasons (Transparency)
- Time limitation and regular review of proportionality
Movement restrictions must clearly specify under which circumstances leaving the home is permitted and for what duration the measure applies.
Legal Remedy and Judicial Review
Affected individuals generally have legal remedies against the imposition of movement restrictions. In particular, these are:
- Objection and annulment action in the case of administrative acts
- Judicial review procedure for statutory ordinances
- Interim relief for a provisional suspension in the case of impending, especially serious infringements of fundamental rights
Administrative courts and constitutional courts always examine, in the event of legal actions, the legal basis and whether the principle of proportionality has been observed.
Special Cases and Examples
Movement Restrictions during Pandemics
During the COVID-19 pandemic in spring 2020, extensive nationwide movement restrictions were imposed for the first time. The aim was to contain the spread of infection, relieve the healthcare system, and protect vulnerable groups. The legal basis was the Infection Protection Act and ordinances issued by the states based on it.
Movement Restrictions under Police Law
In addition, police and regulatory law also provide for area-wide movement restrictions, for example to prevent serious threats to public safety (e.g., in cases of imminent unrest, hazardous situations, or natural disasters).
Sanctions for Violations of Movement Restrictions
Violations of lawfully imposed movement restrictions constitute administrative offences or even criminal offences under the relevant authorizations. Sanctions may include fines and, in cases of persistent or intentional behavior, imprisonment. The specific fine catalogues and criminal provisions are set out in the relevant laws and regulations.
Criticism and Social Debate
The imposition of movement restrictions has always been the subject of intensive social and constitutional debate. Central issues include the justification of infringements on freedom, the maintenance of proportionality, and the possibility of less intrusive alternatives. Jurisprudence has repeatedly emphasized in this context that the legislature is obligated to regularly evaluate the measures and adapt them to the current risk situation.
References and Further Sources
- German Institute for Human Rights: “Restrictions of Fundamental Rights during the Pandemic”
- Federal Ministry of Justice: “Handbook on the Infection Protection Act”
- Federal Constitutional Court, decisions and rulings on restrictions of freedom during the Corona pandemic
Note: This entry provides a comprehensive overview of the legal framework of movement restrictions in German law. Changes in the legal situation after the editorial deadline must be taken into account. The Federal Ministry of Justice and the respective state governments provide current information.
Frequently Asked Questions
Who is responsible for imposing movement restrictions?
In Germany, responsibility for imposing movement restrictions lies primarily with the state governments and their respective competent authorities. The primary legal basis can be found in the Infection Protection Act (IfSG), especially §§ 28 ff. This law authorizes authorities, in the event of a national epidemic situation or a specific threat to public health, to order measures to stop the further spread of infectious diseases—which includes movement restrictions. Additionally, the federal government may, via regulations and legislative amendments, adopt rules with immediate effect when nationwide coordination is necessary. However, the specific implementation and design generally rest with the states and municipalities, which are obliged to adhere to the principle of proportionality and to regularly review the measures.
Must movement restrictions be proportionate?
Yes, movement restrictions are fundamentally subject to the principle of proportionality, which derives in particular from Article 20(3) of the Basic Law. This means that such measures are only lawful if they are suitable, necessary, and appropriate to achieve the chosen aim—such as protecting the lives and health of the population. They must therefore constitute the least intrusive means to achieve their purpose and, in particular, must not be disproportionate to the restrictions on fundamental rights associated with them, such as the right to freedom of movement (Art. 11 Basic Law) or general freedom of action (Art. 2(1) Basic Law). Authorities must also regularly review whether continued enforcement or modification of the measures is necessary; otherwise, they must be lifted.
Are there exceptions to movement restrictions?
As a rule, ordinances or orders concerning movement restrictions provide for various exceptions. These often relate to compelling reasons of daily life, such as traveling to workplaces, attending medical appointments, necessary shopping, or caring for individuals in need of support. Walks or physical activity are also permitted under certain conditions if explicitly allowed. Further exceptions may include religious events, exercising parental responsibility, or attending court appointments. The specific exceptions depend on the provisions of the respective state or local ordinance and must be examined in detail. Violating the conditions or unilaterally expanding the exceptions may result in fines or other sanctions.
What are the legal consequences of violating movement restrictions?
A violation of effectively imposed movement restrictions can, depending on the seriousness of the offence and the relevant regulations, lead to various legal consequences. These range from administrative fines to criminal consequences in the case of repeated or intentional violations or where third parties are endangered, such as under § 74 IfSG. The amount of fines varies between states and individual cases but may in some instances amount to several thousand euros. Further measures such as bans on being present in certain places or temporary detention to enforce restrictions can also be ordered in individual cases. Legal remedies such as objections or legal actions against the measures are possible in individual cases but do not usually have suspensive effect against immediately enforceable and generally time-limited regulations.
How are movement restrictions monitored and enforced?
The monitoring and enforcement of movement restrictions are primarily the responsibility of local regulatory authorities and the police. These institutions are authorized to stop individuals in public spaces, verify the purpose of their presence and identity, and request proof of any exemptions that may apply. In case of violations, fines can be imposed directly or reports filed. Authorities are required to monitor compliance evenly, proceed by random checks, or follow up on specific indications of violations. In cases of persistent or serious violations, the district court may also order measures, such as placement to enforce quarantine.
When and how are movement restrictions lifted?
Movement restrictions are generally time-limited and must be lifted as soon as they are no longer necessary. The lifting is usually carried out by means of a new ordinance or a corresponding administrative act by the competent authority. Authorities are obligated to continuously evaluate their measures, particularly in light of the current infection situation and taking into account current scientific findings or guidelines issued by the Robert Koch Institute. Courts are also able, within the scope of interim orders or in main proceedings, to order immediate lifting or adjustment if the requirements for restricting fundamental rights no longer exist or if the measures are no longer deemed proportionate.
Can affected persons challenge movement restrictions?
Affected persons have the possibility to legally challenge movement restrictions in individual cases. This can be done by lodging an objection with the issuing authority or via an interim order or legal action before the administrative court. The prospects of success depend on the specific factual and legal situation, in particular on whether a disproportionate restriction of fundamental rights exists. It should be noted that in the case of urgent or time-limited measures, legal remedies usually do not have suspensive effect, meaning that the restriction remains in force until a court decision is reached. There are also special complaint mechanisms for vulnerable groups, e.g., people with disabilities or chronic illnesses.
