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[Article series] The experts behind Luxembourg's COVID-19 fight

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Published on Monday, 15 June 2020

Stefan Braum is a Professor in the Law Department at the University of Luxembourg.

Specialising in European and International (Economic) Criminal Law, Criminal Proceedings, Philosophy of Criminal Law, and Criminology, Prof. Braum has been looking at the COVID-19 crisis through his unique criminal law lens, recently publishing long-form articles in the Luxembourg newspapers D’Land (“Die Pest im Recht”, 03/04/2020) and Luxemburger Wort (“Rückkehr zur Norm”, 16/05/20), and giving numerous interviews about governments’ delicate balance between protecting the health and safety of citizens while also ensuring fundamental rights and freedoms during and after the pandemic.

Prof. Braum is also Principal Investigator for the project “Protection against Infection through regulatory law” (PROLAW), submitted through the second FNR COVID-19 Fast Track call and selected for funding.

 

1)     Could you tell us more about your background and expertise?  

My background and expertise is in criminal law. I am a criminal lawyer and have been professed in criminal law for over 30 years. At the beginning of my career, I worked in as a defence lawyer in Germany where I defended people accused of all types of crimes, from simple theft to murder.

I have been working at the University since 2005. I was one of the first three Law professors along with Prof. Herwig Hofmann and Prof. André Prüm, founding the Research Unit in Law, which is now the Department of Law.

Through my academic research, I have a perspective of criminal law in an interdisciplinary context. I study the typical legal application of criminal law, but also how law functions within a society and political systems. Among others, I look at questions of how criminal law can be legitimated, what are the fundamental criteria of justification of the law, what is needed to determine that a law or legal framework is a legitimate tool?

 

2)     How is your expertise relevant in the current COVID context?

I am giving a criminal lawyer’s perspective on the impact that this crisis has on principles of the rule of law and attempting to answer the question of what an adequate, proportionate, and sustainable legal framework would be needed in Luxembourg to face such a crisis.

The current State of Emergency in Luxembourg can be explained by the fact that there is a gap in Luxembourg’s regulations; there is no law or regulatory framework on pandemics.

The problem from a legal perspective, specifically from a criminal law perspective, is the following: the origin of rule in the Luxembourgish constitution on the State of Emergency was not a health crisis, but the Bataclan terrorist attacks in Paris. This State of Emergency law was meant for matters of internal security and terrorist threats, not infectious diseases. 

If you look at past legal experiences with State of Emergency regimes, we find that they leave traces in the so-called ‘ordinary’ law. Once fundamental rights are restricted, a scar remains in the legal system. This can be easily shown in criminal law. Once we empower the executive authority to legislate, it forces an erosion and a withdrawal of certain legal criteria that are necessary for legality. This would then be expressed through a loss of fundamental rights in the future. In the context of the COVID-19 pandemic, we need to recognise this threat and guard against it through appropriate legal framework.   

Criminal lawyers have an intrinsic scepticism of state power, due in part to the fact that criminal law exists to protect citizens’ freedom and fundamental rights. Because of the crisis, the discussion in society has become more focused on the executive powers with the legislative branch not present to provide input and balance the discussion. Therefore, normative and regulatory framework are being left out of the current discourse. Now in this third phase of deconfinement it’s good to see that the parliaments are getting back into the debate of what measures can be legitimised and to what extent they are proportionate. We must stay vigilant post-pandemic as ‘crisis-mode’ thinking might put the pillars of rule of law and fundamental rights at stake. People need to understand that Luxembourg’s regulatory framework in relation to this issue is actually very fragile. Even if we don’t see immediate political effects, once we are confronted with the negative economic impact, they may appear.

 

3)     What is your specific role in ongoing COVID projects? 

The lawyer’s role during the COVID-19 crisis is not only to enlighten people that there is a problem, but also to provide a workable solution. The project that I am leading, PROLAW (Protection against infection by regulatory framework), seeks to do just that. We are comparing the regimes of different states, enforcement measures on the repressive side, ideas for tracing and tracking and how States are managing the crisis with consideration for the rule of law. We will then critically analyse what is problematic about these other regimes, but also identify the best practices. Post-crisis, we will look at how the systems react, what traces or ‘scars’ are left behind and propose means to prevent lasting damage to the legal system.

The project is therefore designed for the long term (3 years), because it aims to cover an evolutionary arc from taking stock of the existing measures to contain the virus in various European countries, through the evaluation of possible consequences for fundamental rights, to the development of a normative legal framework for infection protection. The project aims to create an interdisciplinary legal platform as a result of the Luxembourg COVID-19 research, on which legal and normative findings are accessible for health policy, (bio-) medical, but also social science research.

 

4)     Could you tell us more about your collaborators?

The PROLAW project team, along with myself, is composed of Prof. Silvia Allegrezza, Prof. Mark D. Cole, Prof. Jörg Gerkrath, our Faculty's Dean, Prof. Katalin Ligeti, Prof. Sévèrine Ménetrey, Dr. Basak Baglayan and PhD students Loren Jolly and Nicole Citeroni.

This diverse group of law researchers allows us to cover the different angles of this interdisciplinary project. Prof. Allegrezza and Prof. Ligeti are specialists in European and International Criminal Law, Prof. Cole will focus on Data Protection issues, Prof. Gerkrath and Dr. Baglayan will bring their expertise in Constitutional Law and Fundamental Rights, while Prof. Ménètrey will study aspects related to Access to Judiciary systems.