Amtsgericht Weimar: ban on unproven Coronameasures
Hanno Wisse LMM, 30th of april 2021, updated 12th of may 2021.
Following in the footsteps of Portugal and Austria, a court in Germany, the Amtsgericht Weimar, also issued a ruling on April 8, which ravages the corona measures because there isn’t any good scientific basis for it. It was the first lawsuit in Germany in which the judge took the trouble to hear three renowned experts about the efficacy of the said measures. In the article below, Mr. Hanno Wisse LLM, lawyer, has extensively analyzed the rulling and explains why it is so important and well-founded.
1. Introduction
On April 8, 2021, a sensational court decision was issued in Germany. The Amtsgericht Weimar (hereinafter: the Amtsgericht), a family court, prohibited the prescription of facemasks, social distancing and rapid tests (hereinafter: the corona measures) in the two schools of the plaintiff’s children. The court also ordered access to physical education for all pupils of these schools. [1].
It concerned an urgent procedure in which the family court issued a provisional measure with immediate effect. It was the first lawsuit in Germany in which the judge took the trouble to hear three renowned experts about the efficacy of the said measures. Their expertise advice is an integral part of the verdict. A true treasure trove for those interested in the question of the scientific evidence behind the corona measures.
Later, on April 20, 2021, the Weimar administrative court, the Verwaltungsgericht Weimar, ruled that the Amtsgericht had gone beyond its scope. Reproving school authorities would be the sole competence of the administrative courts. [2].
Furthermore, the Amtsgericht would not have followed the well-founded majority of scientific experts, but only a few self-selected experts from the margins. [2, page 7]. It is striking, however, that the administrative court does not further substantiate this claim. He leaves it meager reference to a suggestive article published in Deutschlandfunk, a German mainstream news site. In that article, only one of the three experts heard by the Amtsgericht is written off as a corona denier, solely on the basis of a few subjective impressions of one of its students. [3]. As if that could yield a tenable argument.
Appeal against this decision to the highest administrative court of the federal state of Thuringia, the Oberverwaltungsgericht Thüringen, is still open.
On April 26, German justice raided Christian Dettmar, the family judge of Amtsgericht Weimar, who ordered the ban on the corona measures for two schools on April 8. The police searched his office, private rooms and car. His phone has been confiscated. The Verwaltungsgericht ruled that the Amtsgericht had no jurisdiction until the judgment of 8 April. It seems that this judgment was used to formulate an indictment against Dettmer on the basis of Article 339 of the Straf Gesetz Buch (StGB), German Criminal Code: Rechtsbeugung, literally: bending of the law. He would have consciously set the law to his own will.
However, Rechtsbeugung does not just happen. For example, just a wrong assessment by a judge is not covered. It is required that the judge has deliberately ignored mandatory rules of law, drawn up in plain language. However, that is not so easy to prove. It often happens that a judge is subsequently declared unauthorized in a case. However, this seldom leads to a complaint such as Rechtsbeugung. After all, that would jeopardize the required independence of judges, guaranteed in Germany by Article 97 of the Gründgesetz, the German constitution. The automatism with which it is assumed in this case that there would be a criminal offence, therefore, suggests that there is a political motive behind this charge.
In fact on April 28, the Oberlandesgericht Karlsruhe, one of the two higher regional courts of Baden-Württemberg, decided in a similar case as the Weimar case that a family court is not only competent but has even the legal obligation not to simply refer to an adminstrative court to deal with the issue, but to investigate any potential risk to the health of the child by itself and to rule accordingly [4]. By consequence the accusation against Christian Dettmar of Rechtsbeugung already does not hold any water.
On May 1, German lawyers Beate Bahner, Ralf Ludwig and Markus Haintz presented white roses in protest at the Amtsgericht Weimar. The white roses contained a historical reference to a resistance group Weisse Rose that called for nonviolent resistance to the Nazi regime from June 1942 to February 1943, when key members were arrested to be tried and executed.
In this context, it is not necessary to address the question whether or not the Amtsgericht was competent, however interesting this may seem. It is clear that by declaring the Amtsgericht incompetent, the Verwaltungsgericht could simply ignore the answer to the question of proof for the corona measures by the Amtsgericht. As noted earlier, the Verwaltungsgericht also made no serious attempt to refute this. The assessment of the scientific substantiation of the corona measures by the Amtsgericht therefore retains argumentative value for other court cases in which the same measures are central.
This article focuses on the question of how the Ambtsgericht Weimar came to the belief that a ban on the corona measures was necessary for two schools. This is mainly done on the basis of Part II of the 178-page judgment, entitled: ‘Begründheit der Anregung an das Familiengericht’, translated: validity of the application to the family court, from p. 165. The emphasis will be on the factual side of the matter.
2. Legal basis
The Amtsgericht bases itself in the first place on Article 1666 paragraph 1 of the Bürgerliches Gesetz Buch (BGB), German Civil Code, which states that the family court must take the necessary measures if the physical, mental or psychological well-being of the child or his property is in danger and the parents are unwilling or unable to avert the danger. The Amtsgericht concludes that it must be such a current risk that significant damage can be foreseen with a high degree of certainty in the event of further development without intervention. Paragraph 4 explicitly states that the family court can also order measures against third parties when it comes to care for persons.
The Amtsgericht goes on to state that, on the basis of Article 1697a BGB, the family court is officially authorized to take measures in a case brought before it. This means that in that case the Amtsgericht is not bound by the proposals made by the parties.
The Amtsgericht considers itself competent to take measures, if necessary, not only for the plaintiff’s children, but equally for all other children in the schools concerned. For this purpose, the Amtsgericht relies on the principle of equality in Article 3 of the Gründgesetz and on Article 6 of the Gründgesetz, which requires the state to ensure the safety of children. The reasoning is that, under the principle of equality, it would be irresponsible for the state to allow its duty to protect only the plaintiff’s children.
However, nowhere in its judgment does the Amtsgericht explicitly state why, on the basis of this reasoning, not all children attending school in the State of Thuringia are implied, but only the children attending the two schools in question.
The Amtsgericht then declares the corona measures in question, issued by the Land of Thuringia, to be unconstitutional, because they are contrary to the principle of proportionality, as laid down in Articles 20 and 28 of the Gründgesetz. The Amtsgericht bases its jurisdiction in this regard, inter alia, on previous case law of the Bundesverfassungsgericht, the constitutional court of Germany.
Measures to pursue a legitimate aim must be appropriate, necessary and proportionate in the narrow sense, or as a result of an assessment of the advantages and disadvantages.
The Amtsgericht further argues that measures without evidence on the basis of Article 1 paragraph 2 of the Infektions Schutz Gesetz (IfSG), the German Infection Protection Act, are in advance unsuitable for legitimate goals such as preventing overburdening of healthcare or reducing infections with the virus. to strive. In addition, the measures in question are disproportionate because they do not lead to discernible benefits for the children or third parties, but do lead to significant collateral damage.
The state of Thuringia failed to provide sufficient scientific justification for the corona measures and to substantiate why they would be proportionate.
The Amtsgericht also points out that children have the right to access to education under Articles 28 and 29 of the UN Convention on the Rights of the Child, which the Amtsgericht considers to be directly applicable in Germany. The Amtsgericht emphasizes the educational objective of Article 29. Physical education is better suited to this than online education.
Finally, the Amtsgericht considers that the parents are clearly unable to avert the outlined danger. The approaching end of the Easter holidays brings with it urgent interest.
The legal core of the verdict is thus given. More will be discussed, but for this article it has little added value to go into it in detail.
3. Facemasks
Expert Prof. Dr. med. Ines Kappstein [5] [1, page 20]. (hereafter: Kappstein), specialized in microbiology, virology and infection epidemiology and also specialist in hygiene and environmental medicine, has collected and evaluated all international scientific data on facemasks in its extensive expertise advice to the Amtsgericht. Her expertise advice has been included in full in the judgment: pages 20 to 108, including notes: pages 99 to 108. This shows that there is no scientific evidence that facemasks are effective for healthy people in public. Specialist Prof. Dr. Christof Kuhbandner [6] [1, pagina 108]. (hereafter: Kuhbandner), development psychologist and expert in the field of scientific methods and diagnostics, confirms this. His expert advice is also included in full in the judgment: pages 108 to 144.
Even when international health authorities argue for the wearing of facemasks, they often at the same time admit that there is no good scientific basis for this.
Kappstein argues that all publications referred to, to support the effectiveness of facemasks in public spaces, meanwhile, do not allow this conclusion. This also applies where the Robert Koch Institute (RKI), the National health institute of Germany, speaks of “third-party protection” and “unbranded transmission” to justify its “re-evaluation” of the wearing of facemasks.
It is also important to stress that plausibility, mathematical estimates and subjective assessments in opinion pieces cannot replace clinical epidemiological research at the population level. The results of solid empirical research should count most heavily here. Nevertheless, the results in all these cases, including empirical research, have limited explanatory power and the quality of the research is mediocre because it says little about wearing facemasks in public life.
According to Kuhbandner, the observational studies, laboratory studies into the effects of the facemasks and modeling studies, on which the recommendations of the RKI are based, provide only meager evidence at best. The methodology used is too reductionist to be able to draw valid conclusions from that evidence about the effect of the use of facemasks in public life. It is virtually impossible to simulate the actual use of a facemask in a research setup or to model it. Usually it concerns research into sub-aspects. Moreover, the research results achieved so far are heterogeneous.
The Randomized Control Trials (RCTs), which, because of the randomisation of participants, divided into an experimental group and a control group, go above obeservational studies, do not even give any reason to state that facemasks could be effective in public life. The only extensive RCT on the use of cotton masks previously indicated that they increase the risk of infection, as a result of incorrect handling of the facemasks.
Much research takes insufficient account of the confounding factors such as long-term and incorrect use. Kappstein confirms that common misuse increases the risk of infection. Citizens are insufficiently informed by governments about proper use and are constantly touching their facemasks.
Kuhbandner points out that these handling problems are greater in adolescents and children than in adults, which is harmful due to the increased risk of infection.
In addition, infections in schools without facemasks are very rare in themselves, so that the net effect of facemasks, if they have a positive effect, is negligible for this reason alone.
According to Kappstein, the current alleged increase in the number of positive cases in schools is purely due to the fact that the number of tests has risen sharply in recent weeks. Since the risk of infection is generally low in schools, according to research, there is no reason to fear that a new mutant will significantly increase the number of infections in schools.
According to Kuhbandner, there is clear and impressive evidence that wearing facemasks for long periods can be harmful in general and children in particular. The latter is evident from the publication in the Monatschrift Kinderheilkunde, the monthly journal of pediatrics, about the results of the world’s first registry for side effects of facemasks. Within a week of the start of this register, 20,353 people had already entered data. The article focuses on the parent reports that concerned a total of 25,930 children. It showed that 68% of the children complained about the facemasks, 13,811 children suffered from headaches, 12,824 from concentration problems, 9,460 from sleepiness, 7,700 from shortness of breath, 6,848 from dizziness, 5,365 from fainting and 4,292 from nausea. The average wearing time of the mask was 260 minutes per day.
More generally, the facemasks increases the risk of infection, not only through incorrect use, but also because facemasks function as a reservoir for germs during long-term use. The use of a facemask during a school day is in no way comparable to the professional facemask usage by a surgeon, where the facemask is regularly replaced and the well-ventilated work area is filled with extra oxygen to compensate. With long-term use of facemasks there is a risk of a facemasks: a bad odor, gums and dental problems.
Facemasks material can also contain toxins that are harmful to health when inhaled for a long time. The loops of masks can affect the growth of the ear in young children, where the ear cartilage is not yet fully grown.
In undiagnosed conditions, wearing a facemask can increase the risk of panic attacks, seizures and disturbances in consciousness. Children who cannot wear a facemask for medical reasons run the risk of discrimination if they are obliged to wear a facemask. Furthermore, wearing a facemask limits non-verbal communication, which reduces the ability to empathize. Because the expression of the mouth area, which is especially important for the communication of positive emotions, is covered up, the emotional communication often distorts into something more negative than intended. It also limits verbal communication because the visibility of the lips is essential for this. This while communication is highly important for the development process of children.
Finally, no good research material is available on the large-scale wearing of facemasks for children for a long time, so their safety cannot be guaranteed. It is important to realize that small risks that go unnoticed in a possible sample, in a massive experiment such as the current facemasks obligation, can suddenly turn out to be of significant importance.
Facemasks in schools are therefore an unsuitable and unnecessary means of pandemic control, the burden of which does not outweigh the positive effects.
4. Social distancing
Kappstein considers the aerosol transfer theory medically implausible and scientifically unproven. The aerosol theory is mainly the toy of aerosol physicists who, from their profession, can make medical application difficult. Together with the theory of “unnoticed transmission”, this theory mainly promotes unfounded fear of fellow human beings in interior spaces.
Keeping 1.5 meters (1-2 meters) away can be considered a sensible measure when one of the people involved shows obvious signs of illness. But at most there are indications that this could be wise in that case. Scientific evidence is lacking. Keeping 1.5 meters (1-2 meters) away if none of those present shows signs of a cold is not supported by any research. Even closer contacts, even with people who show symptoms of a cold, do not pose a risk. The contact is then too short for droplet contact to take place. This is also evident from studies of households where people lived close to each other, with frequent skin and mucous membrane contact, where only few people get sick if one of them has an infection of the respiratory tract.
A systematic overview with meta-analysis on intra-household transmission, published in December 2020, shows a transmission rate of 18% in symptomatic cases and only an extremely low 0.7% in asymptomatic cases. It is therefore pointless to take into account asymptomatic transmission.
A duty of social distance towards everyone in schools is therefore an inappropriate, unnecessary means, the burden of which outweighs the positive effects.
5. PCR tests and rapid tests
Prof. Dr. rer. biol. hum. Ulrike Kämmerer [7] [1, page 144]. (hereafter Kämmerer), specializing in human biology, immunology and cell biology, states that a correctly performed PCR test cannot determine whether someone is infected with a pathogen. Her expertise advice was also included in full in the judgment: pages 144-163. The PCR test cannot distinguish between a non-reproductive virus residue left after a previous infection and a piece of RNA from a virus that can replicate itself. A virus residue can remain in the body for many months after the infection. Kappstein confirms this.
The PCR test is unsuitable for detecting infection with Sars-CoV-2 in asymptomatic humans. For a valid diagnosis, more specific tools should be used, such as isolation of reproductive viruses.
In addition, there are two factors that are important when using the PCR test: the target genes that the test measures and the ct value or the number of amplifications at which the test measures. These two factors can be used to manipulate the test.
During the pandemic, for example, the number of target genes was reduced from 3 to 1 on the instructions of the WHO. Kämmerer calculates that taking 100,000 tests on people who are not infected will result in 2690 false positives when using 1 target gene. 3 target genes is only 10. Such a difference can be decisive for whether or not to take freedom-restricting measures.
The second factor concerns the ct value. According to the scientific consensus, all results that only become visible at 35 amplification cycles have no scientific value anymore. When results become visible at 26-35 cycles, a successful virus culture is also required to speak of a positive result.
However, the WHO initially set a ct value of 45 for the PCR test for Sars-CoV-2.
Besides these two factors, there are more parameters to keep an eye on. The WHO prescribes that for a diagnosis it is the judgment of a doctor that is decisive, not just the test result. The WHO also prescribes that if a positive result does not agree with the clinical findings, a new test must be taken. In that case, differential diagnostics must also be used. In practice, however, little of this is achieved.
Fortunately, there was no obligation to use the PCR test for children in schools. Such an obligation applied only to the use of rapid tests.
Nor can the rapid test provide information about infectivity because it can only detect protein components, without any demonstrable connection with a reproductive virus. Positive results from this test should be compared with the results from a virus culture to gain insight into the percentage of false positives. However, this is impossible, because the test conditions are so variable and uncontrollable. The low specificity of this test leads to a high rate of false positives, which hastens the adoption of custodial measures. Testing among asymptomatic persons increases this percentage even further.
Kuhbandner explains that according to calculations by the RKI, the chance of actual contamination occurring with a positive result is only two percent at an incidence of 50 (specificity of the test 80%, sensitivity of the test 98%) in mass tests with rapid tests, regardless the symptoms. This would mean that for every two correct positive results from the quick test, there would be 98 false positive results, all of which would then need to be retested with a PCR test. That shows that the quick test is unreliable.
Based on studies in Austria where masks are not worn in primary schools, but rapid tests are conducted three times a week across the country, Kuhbander states:
100,000 elementary school students would have to put up with all the side effects of wearing a mask for a week to avoid just one infection per week. That is clearly disproportionate.
In October 2020 Prof. Dr. In addition, John Ioannidis published in the WHO Bulletin that the Infection Fatality Ratio (IFR) for corona is only 0.23%, which is consistent with moderate flu epidemics.
The commonly used term “incidence” refers to the occurrence of new infections in a specific group of people who are tested repeatedly. Kämmerer points out that in practice, however, an undefined group of people is tested in undefined periods. That affects the incidence in an improper way. If the group size and test frequency are not fixed, it is no longer clear whether the results are caused by the virus or by these carelessness.
Kuhbandner argues that in addition to a facemask and the practice of social distance, undergoing continuous testing also contributes to arousing and maintaining fears in children. At a later age, they can therefore more easily develop into anxiety disorders with a permanent character.
There is now enough evidence that the measures have a negative impact on the mental health of people in general and children in particular.
Imposing a requirement for rapid testing in schools is therefore inappropriate, not necessary and more burdensome than it provides benefits.
6. Conclusions
The best summary of the case lies in the illustrious sentence from the verdict: “schools are not playing a major role in the“ pandemic ”. This means that all the measures mentioned for the two schools in question will be taken off the table in one fell swoop.
The strength of this verdict lies mainly in the checking of evidence for the effectiveness of these measures in a positive and negative sense. It cannot be established that an unproven measure that serves a legitimate purpose is necessary, appropriate and proportionate. However, this is required by law.
It is also very important that inconsistencies in the evidence of the RKI are exposed. After all, the judiciary is in the habit of relying blindly on an authoritative institute such as the RKI. So independent expert advice has to carefully and well-argued relate to that. In fact the RKI is not an independent institution, what it should be. It can already be read from its webpage that it is part from the Bundesministeriums für Gesundheid, the German Federal Ministery of Health. The lack of independency in the health sector in general and of national health institutes in particular, already by institutional design or more hidden, is a major problem during the corona crisis and should be exposed and problematized.
In any case, it makes no sense to simply dismiss the view of these three renowned experts as an alleged opinion from the margins, without going into the substance. After all, that would simply elevate prejudice to judgment. A motivated rebuttal is the least that is required in that case.
[5] Prof. Dr. med. Ines Kappstein, hygienist, specializing in microbiology, virology and infection epidemiology,
and also a specialist in hygiene and environmental medicine. Her habilitation was in the field of hospital hygiene.
From 1998 to 2006 she worked at the Klinikum Rechts der Isar of the Technical University of Munich. From 2006
until 2016 she was chief physician of the hospital hygiene department of the Kliniken Südostbayern AG of the
districts Traunstein and Berchtesgadener Land. Since 2017, she has been self-employed in various acute,
specialist and rehabilitation clinics. See also the judgment of the Amtsgericht, p. 20.
[6] Prof. Dr. Christof Kuhbandner is professor of psychology, chair of the department of educational psychology at the
University of Regensburg and an expert in scientific methods and diagnostics. Also see the judgment of the
Amtsgericht, p. 108.
[7] Prof. Dr. rer. biol. hum. Ulrike Kämmerer resides at the University Hospital Würzburg,
Women’s hospital, especially the main areas of human biology, immunology and
cell biology. See also the judgment of the Amtsgericht, p. 144.
