German Judge Investigated by Police after Ruling Compulsory Mask-wearing in Schools Unconstitutional
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On 8 April 2021, the Weimar District Family Court ruled in Amtsgericht Weimar, Beschluss vom 08.04.2021, Az.: 9 F 148/21)
that two Weimar schools were prohibited with immediate effect from
requiring pupils to wear mouth-nose coverings of any kind (especially
qualified masks such as FFP2 masks), to comply with AHA minimum
distances and/or to take part in SARS-CoV-2 rapid tests. At the same
time, the court ruled that classroom instruction must be maintained.
This is the first time that expert evidence has now been presented
before a German court regarding the scientific reasonableness and
necessity of the prescribed anti-Corona measures.The expert witnesses
were the hygienist Prof. Dr. med Ines Kappstein, the psychologist Prof.
Dr. Christof Kuhbandner and the biologist Prof. Dr. Ulrike Kämmerer were
heard. 2020NewsDe has published a summary of the judgment, the salient parts of which are set out in full below (translation by DeepL).
The reason for highlighting this judgment in such detail is because
of the consequences reported by the news website to the judge of his
decision. According to 2020NewsDe, “the judge at the Weimar District
Court, Christiaan Dettmar, had his house searched today [26 April 2021].
His office, private premises and car were searched. The judge’s mobile
phone was confiscated by the police. The judge had made a sensational
decision on 8 April 2021, which was very inconvenient for the
government’s policy on the measures.” In a side note on the fringes of
proceedings with other parties, continues 2020NewsDe, “the decision in
question has been described as unlawful by the Weimar Administrative
Court without comprehensible justification.”
A cautionary note: I have been informed by Holger Hestermeyer,
Professor of International and EU Law at King’s Law School (@hhesterm),
that cases quashing administrative acts (like the one at issue in the AG
Weimar case) go to administrative courts in Germany. The case, says
Professor Hestermeyer
had, indeed, been brought to the
administrative court, but the court had not quashed the administrative
act. The attorney then (according to Spiegel reports) was looking for
plaintiffs to bring the case before this particular judge via telegram
(competence is based on first letters of surnames, so the attorney was
looking for plaintiffs with the right surname). The judge then assumed
his competence (unprecedented), ruled not just for the plaintiffs but
all kids at the school (peculiar), excluded an oral hearing (hmmm),
rejected all mainstream scientific advise to base the judgment
exclusively on the minority of experts rejecting all such measures
(again hmmm) and excluded an appeal.
So there are important procedural problems with this judgment which
must be borne in mind when reading my summary with excepts both from the
original judgment and the report by 2020De below.
The court case was a child protection case under to § 1666 paragraph 1
and 4 of the German Civil Code (BGB), which a mother had initiated for
her two sons, aged 14 and 8 respectively, at the local Family Court. She
had argued that her children were being physically, psychologically and
pedagogically damaged without any benefit for the children or third
parties. At the same time, she claimed this constituted a violation of a
range of rights of the children and their parents under the law, the
German constitution (Grundgesetz or Basic Law) and international
conventions.
Proceedings under section 1666 of the Civil Code can be initiated ex officio
both at the suggestion of any person or without such a suggestion if
the court considers intervention to be necessary for reasons of the best
interests of the child (section 1697a of the Civil Code).
After examining the factual and legal situation and evaluating the
expert opinions, the Weimar Family Court concluded that the prohibitive
measures represented a present danger to the child’s mental, physical or
psychological well-being to such an extent that substantial harm could
be foreseen with a high degree of certainty.
The judge stated:
These are the risks. The children are not
only endangered in their mental, physical and psychological well-being
by the obligation to wear face masks during school hours and to keep
their distance from each other and from other persons, but they are also
already being harmed. At the same time, this violates numerous rights
of the children and their parents under the law, the constitution and
international conventions. This applies in particular to the right to
free development of the personality and to physical integrity under
Article 2 of the Basic Law as well as to the upbringing and care by the
parents under Article 6 of the Basic Law ….
With his judgement, the judge confirmed the mother’s assessment:
The children are physically,
psychologically and pedagogically damaged and their rights are violated
without any benefit for the children themselves or third parties.
According to the court, the school administrators, teachers and
others could not invoke the state law regulations on which the measures
are based, because they are unconstitutional and thus null and void,
since they violated the principle of proportionality rooted in the rule
of law (Articles 20, 28 of the Basic Law).
According to this principle, also
referred to as the prohibition of excess, the measures intended to
achieve a legitimate purpose must be suitable, necessary and
proportionate in the narrower sense – that is to say, when weighing up
the advantages against their disadvantages. The measures that are not
evidence-based, contrary to Section 1(2) IfSG, are already unsuitable to
achieve the fundamentally legitimate purpose pursued with them, to
avoid overloading the health system or to reduce the incidence of
infection with the SARS-CoV- 2 virus. In any case, however, they are
disproportionate in the narrower sense, because the considerable
disadvantages/collateral damage caused by them are not offset by any
recognisable benefit for the children themselves or third parties
The judge clarified that it had to be pointed out that it was not for
the parties involved to justify the unconstitutionality of the
encroachments on their rights, but conversely for the Free State of
Thuringia to prove the necessary scientific evidence that the measures
it prescribes are suitable to achieve the intended purposes and that
they are proportionate, if necessary. So far, this has not been done to
any degree.
The judge heard expert evidence from Prof Kappstein on the lack of
benefit of wearing masks and observing distance rules for the children
themselves and third parties
Prof. Kappstein, after evaluating all the international data on the
subject of masks, stated that the effectiveness of masks for healthy
people in public is not supported by scientific evidence.
The ruling states:
Plausibility, mathematical estimates and
subjective assessments in opinion pieces cannot replace population-based
clinical-epidemiological studies. Experimental studies on the filtering
performance of masks and mathematical estimates are not suitable to
prove effectiveness in real life. While international health authorities
advocate the wearing of masks in public spaces, they also say that
there is no evidence for this from scientific studies. On the contrary,
all currently available scientific evidence suggests that masks have no
effect on the incidence of infection. All publications that are cited as
evidence for the effectiveness of masks in public spaces do not allow
this conclusion. This also applies to the so-called “Jena Study”- like
the vast majority of other studies a purely mathematical estimation or
modelling study based on theoretical assumptions without real contact
tracing with authors from the field of macroeconomics without
epidemiological knowledge …the decisive epidemiological circumstance
remains unconsidered that the infection values already decreased
significantly before the introduction of the mask obligation in Jena on 6
April 2020 (about three weeks later in the whole of Germany) and that
there was no longer any relevant infection occurrence in Jena already at
the end of March 2020.
The masks are not only useless, they are also dangerous, the judge concluded.
Every mask, as the expert further states,
must be worn correctly in order to be effective in principle. Masks can
become a contamination risk if they are touched. However, on the one
hand they are not worn properly by the population and on the other hand
they are very often touched with the hands. This can also be observed
with politicians who are seen on television. The population was not
taught how to use masks properly, it was not explained how to wash their
hands on the way or how to carry out effective hand disinfection. It
was also not explained why hand hygiene is important and that one must
be careful not to touch one’s eyes, nose and mouth with one’s hands. The
population was virtually left alone with the masks. The risk of
infection is not only not reduced by wearing the masks, but increased by
the incorrect handling of the mask. [The expert sets this out in
detail] as well as the fact that it is “unrealistic” to achieve the
appropriate handling of masks by the population.
The judgement goes on to say: “The transmission of SARS-CoV-2 through
‘aerosols’, i.e. through the air, is not medically plausible and
scientifically unproven. It is a hypothesis that is mainly based on
aerosol physicists who, according to the expert, are understandably
unable to assess medical correlations from their field of expertise. The
‘aerosol’ theory is extremely harmful for human coexistence and leads
to the fact that people can no longer feel safe in any indoor space, and
some even fear infection by ‘aerosols’ outside buildings. Together with
‘unnoticed’ transmission, the ‘aerosol’ theory leads to seeing an
infection risk in every fellow human being.
The changes in the policy on masks, first fabric masks in 2020, then
since the beginning of 2021 either OP masks or FFP2 masks, lack any
clear line. Even though OP masks [the standard blue masks with filter
cloth and three layers of purifying dust] and FFP masks are both medical
masks, they have different functions and are therefore not
interchangeable. Either the politicians who made these decisions
themselves did not understand what which type of mask is basically
suitable for, or they do not care about that, but only about the
symbolic value of the mask. From the expert’s point of view, the
policy-makers’ mask decisions are not comprehensible and, to put it
mildly, can be described as implausible.
The expert further points out that there are no scientific studies on
spacing outside of medical patient care. In summary, in her opinion and
to the conviction of the court, only the following rules can be
established:
- “keeping a distance of about 1.5 m (1 – 2 m) during vis-à-vis
contacts when one of the two persons has symptoms of a cold can be
described as a sensible measure. However, it is not scientifically
proven; it can only be said to be plausible that it is an effective
measure to protect against contact with pathogens through droplets of
respiratory secretion if the person in contact has signs of a cold. In
contrast, an all-round distance is not an effective way to protect
oneself if the contact has a cold.
- keeping an all-round distance or even just a vis-à-vis distance of
about 1.5 m (1 – 2 m) if none of the people present has signs of a cold
is not supported by scientific data. However, this greatly impairs
people living together and especially carefree contact among children,
without any recognisable benefit in terms of protection against
infection.
- close contacts, i.e. under 1.5 m (1 – 2 m), among pupils or between
teachers and pupils or among colleagues at work etc., however, do not
pose a risk even if one of the two contacts has signs of a cold, because
the duration of such contacts at school or even among adults somewhere
in public is far too short for droplet transmission to occur. This is
also shown by studies from households where, despite living in close
quarters with numerous skin and mucous membrane contacts, few members of
the household become ill when one has a respiratory infection.”
The court also followed Prof Kappstein’s assessment regarding the
transmission rates of symptomatic, pre-symptomatic and asymptomatic
people.
Pre-symptomatic transmissions are
possible, but not inevitable. In any case they are significantly lower
when real contact scenarios are evaluated than when mathematical
modelling is used.
From a systematic review with
meta-analysis on Corona transmission in households published in December
2020, she contrasts a higher, but still not excessive, transmission
rate of 18% for symptomatic index cases with an extremely low
transmission of only 0.7% for asymptomatic cases. The possibility that
asymptomatic people, formerly known as healthy people, transmit the
virus is therefore meaningless.
In summary, the court stated:
There is no evidence that face masks of
various types can reduce the risk of infection by SARS-CoV-2 at all, or
even appreciably. This statement applies to people of all ages,
including children and adolescents, as well as asymptomatic,
pre-symptomatic and symptomatic individuals.
On the contrary, there is the possibility
that the even more frequent hand-face contact when wearing masks
increases the risk of coming into contact with the pathogen oneself or
bringing fellow humans into contact with it. For the normal population,
there is no risk of infection in either the public or private sphere
that could be reduced by wearing face masks (or other measures). There
is no evidence that compliance with distance requirements can reduce the
risk of infection. This applies to people of all ages, including
children and adolescents.”
The court relied on the extensive findings of another expert, Prof.
Dr. Kuhbandner, in its conclusions that there was “no high-quality
scientific evidence to date that the risk of infection can be
significantly reduced by wearing face masks.”
The judge continued
In addition, the achievable extent of the
reduction in the risk of infection through mask-wearing at schools is
in itself very low, because infections occur very rarely at schools even
without masks. Accordingly, the absolute risk reduction is so small
that a pandemic cannot be combated in a relevant way… According to the
expert’s explanations, the currently allegedly rising infection figures
among children are very likely to be due to the fact that the number of
tests among children has increased significantly in the preceding weeks.
Since the risk of infection at schools is very low, even a possible
increase in the infection rate of the new virus variant B.1.1.7 in the
order of magnitude assumed in studies is not expected to significantly
increase the spread of the virus at schools. This small benefit is
countered by numerous possible side effects with regard to the physical,
psychological and social well-being of children, from which numerous
children would have to suffer in order to prevent a single infection.
The expert presents these in detail, among other things, on the basis of
the side-effect register published in the scientific journal Monatsschrift Kinderheilkunde.
The Court also relied on the expert opinion of Prof. Dr. med.
Kappstein on the unsuitability of PCR tests and rapid tests for
measuring the incidence of infection
Regarding the PCR test, the Court quoted Dr Kappstein to the effect
that the PCR test used can only detect genetic material, but not whether
the RNA originates from viruses that are capable of infection and thus
capable of replication.
The expert Prof. Dr. Kämmerer also confirmed in her expert opinion on
molecular biology that a PCR test – even if it is carried out correctly
– cannot provide any information on whether a person is infected with
an active pathogen or not. This is because the test cannot distinguish
between “dead” matter, e.g. a completely harmless genome fragment as a
remnant of the body’s own immune system’s fight against a cold or flu
(such genome fragments can still be found many months after the immune
system has “dealt with” the problem) and “living” matter, i.e. a “fresh”
virus capable of reproducing.
There is a great deal more of interest on the PCR test from page 120
of the 176 page judgment. According to Prof. Dr. Kämmerer, in order to
determine an active infection with SARS-CoV-2, further, and specifically
diagnostic methods such as the isolation of replicable viruses must be
used.
According to the expert report, the rapid antigen tests used for mass
testing cannot provide any information on infectivity, as they can only
detect protein components without any connection to an intact,
reproducible virus.
Finally, the expert points out that the
low specificity of the tests causes a high rate of false positive
results, which leads to unnecessary personnel (quarantine) and social
consequences (e.g. schools closed, “outbreak reports”)until they turn
out to be false alarms. The error effect, i.e. a high number of false
positives, is particularly strong in tests on symptomless people.
The judge then turned to the right to informational
self-determination, which forms part of the general right of personality
in Article 2(1) of the Basic Law. This is the right of individuals to
determine for themselves in principle the disclosure and use of their
personal data. Such personal data also includes a test result.
Furthermore, such a result is a personal health “data” in the sense of
the Data Protection Regulation (DSGVO), which in principle is nobody’s
business.
This encroachment on fundamental rights is also unconstitutional.
This is because, given the concrete procedures of the testing process in
schools, it seems unavoidable that numerous other people (fellow
pupils, teachers, other parents) would become aware of a “positive” test
result, for example.
The judge observed that any compulsory testing of schoolchildren
under Land law was not covered by Germany’s Infection Protection Act –
irrespective of the fact that this itself is subject to considerable
constitutional concerns.
According to § 28 of the Act, the competent authorities can take the
necessary protective measures in the manner specified therein if “sick
persons, persons suspected of being sick, persons suspected of being
infected or excretors” are detected. According to § 29 IfSG, these
persons can be subjected to observation and must then also tolerate the
necessary examinations.
In its decision of 02.03.2021, ref.: 20 NE 21.353, the Bavarian
Administrative Court of Appeal refused to consider employees in nursing
homes as sick, suspected of being sick or excretors from the outset.
This should also apply to pupils. However, a classification as suspected
of being infected is also out of the question.
According to the case law of the Federal Administrative Court, anyone
who has had contact with an infected person with sufficient probability
is considered to be suspected of being infected within the meaning of §
2 No. 7 IfSG; mere remote probability is not sufficient. It is
necessary that the assumption that the person concerned has ingested
pathogens is more probable than the opposite. The decisive factor for a
suspicion of infection is exclusively the probability of a past
infection process, cf. judgement of 22.03.2012 – 3 C 16/11 – juris
marginal no. 31 et seq. The Bavarian Constitutional Court has rejected
this for employees in nursing professions. The Weimar judge observed
that “Nothing else applies to schoolchildren.”
Regarding the children’s right to education, the judge stated:
Schoolchildren are not only subject to
compulsory schooling under Land law, but also have a legal right to
education and schooling. This also follows from Articles 28 and 29 of
the UN Convention on the Rights of the Child, which is applicable law in
Germany.
According to this, all contracting states
must not only make attendance at primary school compulsory and free of
charge for all, but must also promote the development of various forms
of secondary education of a general and vocational nature, make them
available and accessible to all children and take appropriate measures
such as the introduction of free education and the provision of
financial support in cases of need. The educational goals from Article
29 of the UN Convention on the Rights of the Child are to be adhered to.
The judge summarised his decision as follows:
The compulsion imposed on school children to wear masks and to keep
their distance from each other and from third persons harms the children
physically, psychologically, educationally and in their psychosocial
development, without being counterbalanced by more than at best marginal
benefit to the children themselves or to third persons. Schools do not
play a significant role in the “pandemic”.
The PCR tests and rapid tests used are in principle not suitable on
their own to detect an “infection” with the SARS-CoV-2 virus. This is
already clear from the Robert Koch Institute’s own calculations, as
explained in the expert reports. According to RKI calculations, as
expert Prof. Dr. Kuhbandner explains, the probability of actually being
infected when receiving a positive result in mass testing with rapid
tests, regardless of symptoms, is only two per cent at an incidence of
50 (test specificity 80%, test sensitivity 98%). This would mean that
for every two true-positive rapid test results, there would be 98
false-positive rapid test results, all of which would then have to be
retested with a PCR test.
A (regular) compulsion to mass-test asymptomatic people, i.e. healthy
people, for which there is no medical indication, cannot be imposed
because it is disproportionate to the effect that can be achieved. At
the same time, the regular compulsion to take the test puts the children
under psychological pressure, because in this way their ability to
attend school is constantly put to the test.
Finally, the judge notes:
Based on surveys in Austria, where no
masks are worn in primary schools, but rapid tests are carried out three
times a week throughout the country, the following results according to
the explanations of the expert Prof. Dr. Kuhbandner:
100,000 primary school pupils would have
to put up with all the side effects of wearing masks for a week in order
to prevent just one infection per week.
To call this result merely
disproportionate would be a completely inadequate description. Rather,
it shows that the state legislature regulating this area has become
distant from the facts to an extent that seems historic.
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