Retirement and nursing homes over the world emphasised in a memorandum in October 2020 (https://www. johnsnowmemo.com/) that no country had yet succeeded in protecting highrisk groups of individuals in homes when the numbers of COVID-19 new infections were on the increase. State‘s duty to protect Despite the announcements and promises made by politicians and the authorities to guarantee more protection for high-risk patients, smaller care facilities in particular were quickly stretched beyond their limits to even read the nonstop flood of information and non-binding recommendations. The lack of effective help and possibility to test the staff regularly was a critique frequently voiced to the commissions. That looking out for symptoms of COVID-19 and only testing residents who were symptomatic is not an adequate strategy for containing the infection in nursing homes was also evident in those homes that had already been affected by outbreaks in spring 2020. In the view of the NPM, the proactive obligation to protect life is not only the duty of those responsible in the homes but also of the health authorities on federal and regional level entrusted with combatting infection. It is even more incomprehensible that there was a lack of medical PPE for several weeks after the pandemic broke out and there were no concepts based on valid risk analysis for the use of PPE. Restrictions of fundamental rights require objective justification In all of the decisions it has made on the pandemic so far, the Constitutional Court of Austria has also made it clear that only soundly documented evidence can legitimise the proportionality of serious infringements of social life, fundamental rights and right to freedom. Therefore, it is not the exercising of constitutionally guaranteed rights by elderly residents that needs justification but every restriction of the same - even temporary - requires a legal basis as well as a verifiable objective justification. Protection of fundamental rights still applies during the pandemic In television programmes, expert presentations and in the media, the NPM emphasised that it does not suffice when the restriction of fundamental rights pursues a legitimate goal – which is without any doubt the case in protecting the life and health of the population when there are high numbers of COVID-19 infections. Moreover, the measures taken to achieve this goal must be suitable, necessary, appropriate and proportionate. The sooner a suspected case of COVID-19 is detected, the better the staff can adjust to the situation and react correctly so that nobody else becomes infected. In the care services, it turned out that caution regarding clinical symptoms (taking temperature, cough etc.) displayed by the staff and residents could not prevent the spread of infection. What is also important with those in need of care in epidemiological terms is the high number of asymptomatic, infectious virus carriers. Furthermore, infected persons are contagious before they develop symptoms. In both scenarios only a properly developed test strategy can halt the uncontrolled transmission of COVID-19. There are now far more instruments available to this end than in the spring. 31