Boris Reitschuster@breitschuster
“Danger to the mental, physical or emotional well-being of the child”
The district court of Weimar has ruled that the obligation to wear masks, to observe minimum distances and to carry out rapid tests in schools constitute a danger to the mental, physical or mental well-being of the child. This is so serious that, without intervention, it is almost certain that there will be significant harm to children. In his decision, the judge stated: “There is such a danger here. In particular, children are not only endangered in their mental, physical and mental well-being during school hours, but are already damaged. At the same time, this violates many of the rights of children and their parents under the law, the Constitution and international conventions. This applies in particular to the right to the free development of personality and to physical integrity under Article 2 of the Basic Law and to the right under Article 6 of the Basic Law to parental education and care (also with regard to measures for health care and ‘objects’ to be borne by children).” The entire judgment (Amtsgericht Weimar, resolution of 08.04.2021, Az.: 9 F 148/21) comprises 178 pages and is a general statement with the Corona regulations in schools. You can find it under this post.
It is astonishing that, at least via Google, there was initially nothing to be found about the verdict in the major media. Only smaller sites like 2020 News report. It was only after the report here that major media outlets such as Focus Online followed. Already in the headline they operate Richterschelte and Framing in the sense of the government(dubious expert opinions as a basis – Questionable verdict: District Court Weimar prohibits mask duty and tests in schools). This silence, or this shaming, is very remarkable for a democratic media landscape. Even if it is only a judgment of first instance, which is quite likely to be overturned by a higher court, it is nevertheless an important document of contemporary history. It remains to be seen whether a discrediting campaign against the judge will be launched soon, as was the case in January against a judge at the District Court of Weimar, who delivered a Corona-critical verdict (see here). However, according to the lawyers, the present judgment has not been delivered by the same judge. It was a family judge.
The judgment states:
“I. The heads and teachers of the schools of children A, born on …, and B, born on … , namely the State Code School X, Weimar, and the State Primary School Y, Weimar, as well as the superiors of the school management, are prohibited from ordering or prescribing the following for these and all other children and pupils taught at these schools:
- to wear face masks of all kinds in the classroom and on the school grounds, in particular mouth-nose coverings, so-called qualified masks (OP mask or FFP2 mask) or others,
- to observe minimum distances between each other or with other persons which exceed what we know before 2020,
- participate in rapid tests to detect the SARS-CoV-2 virus
II. The heads and teachers of the schools of children A, born on …, and B, born on …, namely the State General School X, Weimar, and the State Elementary School Y, Weimar, as well as the superiors of the school management, are offered to maintain the attendance instruction at the school for these and all other children and pupils taught in these schools.
The judge stated that ‘children are physically, psychologically and pedagogically harmed and violated in their rights without any benefit to the children themselves or to third parties.’ The judge concluded that school administrators and teachers cannot rely on the national legislation on which the measures are based. This is because those provisions are unconstitutional and therefore null and void. The judge justified this on the grounds that they were contrary to the principle of proportionality and thus to the rule of law.
The judgment states: ‘In accordance with that principle, also known as a prohibition of excess, the measures provided for in order to achieve a legitimate purpose must be appropriate, necessary and proportionate in the strict sense, in other words, when weighing up the advantages and disadvantages achieved with them. The non-evidence-based measures, contrary to Paragraph 1(2) of the IfSG, are already unsuitable to achieve the fundamentally legitimate purpose pursued with them, to avoid overloading the health system or to reduce the infection with the SARS-CoV-2 virus. In any case, however, they are disproportionate in the narrower sense, since the significant disadvantages/collateral damage resulting from them are not of any discernible benefit to the children themselves or to third parties,” the judge said.
He also noted a “lack of benefit of wearing masks and complying with distance rules for the children themselves and third parties”: “To the court’s conviction, it concludes that the effectiveness of masks for healthy persons in public is not demonstrated by scientific evidence. Similarly, ‘foreign protection’ and ‘unnoticed transmission’, with which the RKI justified its ‘reassessment’, are not supported by scientific facts. Plausibility, mathematical estimates and subjective assessments in opinion papers cannot replace population-related clinical-epidemiological studies. Experimental studies on the filter performance of masks and mathematical estimates are not capable of demonstrating efficacy in real life. While the international health authorities are in favour of wearing masks in public spaces, they also say that there is no evidence of this from scientific studies. On the contrary, all the scientific results currently available suggest that masks have no effect on the event of infection. All publications cited as evidence of the effectiveness of masks in public spaces do not allow this conclusion. This also applies to the so-called Jena study, as the expert explains in detail in the expert report.”
The verdict on the Jena study goes on: “For the vast majority of other studies – like the vast majority of other studies, a purely mathematical estimation or modelling study based on theoretical assumptions without real contact with authors in the field of macroeconomics without epidemiological knowledge – remains, as explained in detail by the expert, the decisive epidemiological circumstance does not take into account the fact that the infection levels already decreased significantly before the introduction of the mask requirement in Jena on 6 April 2020 (about three weeks later in the whole of Germany) and that it was already at the end of March 2020 there was no more relevant infection in Jena.”
The judge’s ruling then refers to the dangers of wearing masks: “Each mask must be worn correctly, as the expert continues, in order to be effective in principle. Masks can become a risk of contamination when touched. On the one hand, however, they are not properly worn by the population and, on the other hand, they are very often touched with their hands. This can also be seen in politicians who can be seen on television. The population was not taught to use masks correctly, it was not explained how to wash their hands on the way or how to perform an effective hand disinfection. It also did not explain why hand hygiene is important and that one must take care not to grasp one’s eyes, nose and mouth with one’s hands. The population was left virtually alone with the masks. The risk of infection is not only not reduced by wearing the masks, but is increased by the incorrect handling of the mask. The expert explains this in detail in her expert opinion as well as the fact that and for what reasons it is “unrealistic” to achieve the appropriate handling of masks by the population.”
The transmission of the corona virus by “aerosols” is not medically plausible and scientifically unproven, the judge continued: “According to the latest presentation of the transmission routes by the WHO (of 01.12.2020), the new coronavirus (like all other respiratory viruses) is transmitted via (large) potty respiratory secretions and via direct and indirect contacts with respiratory secretions. Aerosol transmission outside medical care (where appropriate While aerosol-producing measures such as.B. open endotracheal suction of intubated patients) could not be ruled out, the detailed examination of all published clusters in which the respective authors postulated or at least considered aerosol transmission to be probable suggested, according to the WHO, that transmission via so-called large droplets and/or contaminated objects (i.e. contact) could also explain the transmission of the pathogens within these clusters. The other international health authorities (ECDC, CDC) also agree that the pathogen of COVID-19 – like other viral respiratory agents – is transmitted mainly through large droplets and contact [117, 118]. The RKI does not determine itself and considers the aerosol transmission to be possible in principle, but does not emphasize this transmission path [119]. The role of aerogenic transmission in SARS-CoV-2 is therefore at least scientifically unclear.”
Transmission by aerosols is a hypothesis which is mainly based on aerosol physicists, who, according to the expert, are understandably unable to assess medical connections from their field of expertise, according to the Court: the *aerosol theory is extremely harmful to the coexistence of human beings as a whole and has a destructive effect on contacts between people of all ages. Therefore, in appropriateepidemiological studies, direct and indirect contacts , via (large) droplets and/or contact (in particular hand contact), would certainly have to be excluded in order to be able to consider aerogenic transmission.”
The policy’s statements on masks, first fabric masks in 2020, then since the beginning of 2021 either surgical masks or FFP2 masks, lacked any clear line, the judge’s ruling states. Surgical masks and FFP masks are medical masks, but have different functions and are therefore not interchangeable: “Either the policy that made these decisions itself did not understand what type of mask is suitable for in principle, or it does not matter to them, but only to the symbolic value of the mask. The mask decisions of the policy are incomprehensible from the expert’s point of view and can be described as implausible.
Citing the expert Prof. Dr. Kuhbandner, the court writes that “so far there is no high-quality scientific evidence that the risk of infection can be significantly reduced by wearing face masks. According to the expert’s findings, the recommendations of the RKI and the S3 guideline of the specialist societies are based on observational studies, laboratory studies on the filter effect and modelling studies, which provide only low and very low evidence, because such studies cannot be drawn from the underlying methodology to draw any really valid conclusions about the effect of masks in everyday life and in schools. In addition, the results of the individual studies are heterogeneous and more recent observational studies also provide contradictory findings.”
In addition, the judge said, “the achievable level of reduction in the risk of infection by wearing masks in schools is very low in itself, because even without masks, contagion is very rare in schools. Accordingly, the absolute risk reduction is so low that a pandemic cannot be combated in a relevant way … According to the expert, the current reported increase in the number of children with infections is in fact due to a sharp increase in the number of tests in children in the previous weeks. Since the risk of infection in schools is very small in itself, even with a possible increase in the infection rate of the new virus variant B.1.1.7 on the scale presumed in studies, it is not to be expected that the virus spread will increase significantly in schools. This low benefit is countered by numerous possible side effects in relation to the physical, psychological and social well-being of children, which many children would have to suffer in order to prevent a single infection. The expert shall explain this in detail, inter alia, on the basis of the adverse reaction register published in the journal Monthly Pediatrics.”
Under the heading “The inappropriateness of PCR tests and rapid tests for measuring the event of infection”, the judgment reads: “Already the expert Prof. Dr. med. Kappstein points out in her report that the PCR test used can only detect genetic material, but not whether the RNA comes from infectious and thus replifientable (=multiplicenable) viruses. Also the expert Prof. Dr. rer. Biol. Hum. In her molecular biology expert report, Kämmerer confirms that a PCR test , even if carried out correctly – cannot make any statement as to whether a person is infected with an active pathogen or not. The test cannot distinguish between “dead” matter*, e.B. a completely harmless genome fragment as a remnant of the body’s immune system’s fight against a cold or flu (such genome fragments are still found many months after the immune system has “done” the problem) and “living” matter, i.e. a “fresh”, reproductive virus. For example, the PCR is also used in forensics to reproduce residual DNA from hair residues or other trace materials using PCR in such a way that the genetic origin of the perpetrator is recognizable (“genetic fingerprint”).”
The judge goes on to say: “Even if, in the implementation of the PCR, including all preparatory steps (PCR design and establishment, sampling, preparation and PCR execution) everything is done “correctly” and the test is positive, i.e.: detecting a genome sequence that may also exist in one or even the specific “Corona” virus (SARS-CoV-2), this does not mean under any circumstances that the person who has tested positive is infected with a replicating SARS-CoV-2 and is therefore contagious to other persons =
Rather, further diagnostic methods such as the isolation of propagating viruses must be used to detect an active infection with SARS-CoV-2.
Irrespective of the fundamental impossibility of detecting an infection with the SARS-CoV-2 virus with the PCR test, the results of a PCR test, according to the expert Prof. Dr. Kämmerer, depend on a number of parameters which, on the one hand, require considerable uncertainties and can be manipulated in such a way that many or few (apparently) positive results are achieved.”
As a “result” it says at the end of the 178-page verdict:
“The compulsion imposed on school children to wear masks and to keep distances between each other and to third persons harms the children physically, psychologically, pedagogically and in their psychosocial development, without this being more than marginal lynotal for the children themselves or third parties.
Schools do not play a significant role in the “pandemic” event.
The PCR tests and rapid tests used are in principle and not suitable in principle and in the beginning to detect an “infection” with the virus SARS-CoV-2.
According to the information in the reports, this is already apparent from the Robert Koch Institute’s own calculations. According to RKI calculations, as expert Prof. Dr. Kuhbandner points out, mass testing with rapid tests, regardless of symptoms, the probability of actually being infected when receiving a positive result is 50 % (test specification 80%, test sensitivity 98%). only two percent. This would mean that two real-positive quick test results would result in 98 false-positive rapid test results, all of which would then have to be tested with a PCR test.
A (regular) compulsion for the random mass testing of asymptomatic, i.e. healthy, for which the medical indication is already lacking, cannot be imposed, because it is disproportionate to the effect that can be achieved with it. At the same time, the regular compulsion to test puts the children under psychological pressure, because their schooling skills are constantly put to the test.
Based on surveys in Austria, where masks are not worn in primary schools but rapid tests are carried out three times a week, the expert Prof. Dr. Kuhbandner explains:
100,000 primary school pupils would have to accept all the side effects of wearing masks for a week in order to prevent only one contagion per week.
To describe this result only as disproportionate would be a completely inadequate description. On the contrary, it appears that the legislator regulating this area has fallen into a distance from the facts, which has reached historical proportions.
With the order of such measures, the welfare of the children, as shown, is endangered, Section 1666 of the German Civil Code (BGB). Teachers are therefore not allowed to order them. They cannot rely on the relevant national regulations and the general decree referred to, since they are in breach of the principle of proportionality because of their inappropriateness to achieve the desired objectives, but in any event because of their disproportionate nature and are therefore unconstitutional and void.
In addition, children have a legal right to accessible schooling.
At the present stage of the investigation, it seems highly likely that this result will be confirmed in the main proceedings. Further explanations are reserved for a decision there.
In the context of a follow-up assessment, the disadvantages which arise when the parents of the children are not sought are to be weighed up if the rules sought by the parents of the children are not first adopted by the Family Court in the interim proceedings, but then later in the main proceedings, and the consequences of the family court already hitting the rule sought by the parents of the children in the interim injunction proceedings. , but not confirmed later in the main proceedings.
The disadvantages for the children, if the desired regulation is delayed by the family court, far outweigh the disadvantages.
In any case, the parents are not in a position to avert the danger, Section 1666 of the German Civil Code (BGB). In view of the imminent end of the Easter holidays, there is also an urgent need to take immediate action.
After all this, the decision, as the tenor showed, was necessary. Since the classmates of the children named in the tenor are equally affected, the General Court took its decision in favour of them.
Here is the verdict:
https://docs.google.com/viewer?url=https%3A%2F%2Freitschuster.de%2Fwp-content%2Fuploads%2F2021%2F04%2FAmtsgericht-Weimar-9-F-148-21-EAO-Beschluss-anonym-2021-04-08.pdf&embedded=true&hl=en
