The Rule of Injustice v. Dettmar

Protecting children is now a “perversion of the law”

In April 2021, a family court judge in an Eastern district of Germany (Weimar) ruled that mask mandates for school children and the mandated rituals of sacrifice to the Covid God (lateral flow tests, social distancing, the mandatory use of hand disinfectants, etc.) are unconstitutional.^[1] He referred to Family and Child Welfare law that says that “if the physical, mental or psychological well-being of the child or his or her property is endangered and the parents are unwilling or unable to avert the danger, the family court shall take the measures necessary to avert the danger.” He has now been found guilty of a “perversion of the course of justice” (Rechtsbeugung). The excellent Critical Judges and Prosecutors Network (Netzwerk Kritische Richter und Staatsanwälte, KRiStA) in Germany has analysed and commented on this case, which may be just the latest in Germany’s special path to totalitarian dystopia: the perversion of the juridical system into Roland Freisler-style political show trials. 

To understand the intricacies of this case, which may mean an end to the German Rule of Law (Rechtsstaat), the article published by KRiStA is required reading, and I urge all my readers to get enlightened on what is currently happening in the German legal system.

The following is a translation of the article by KRiStA, written by the editors, and originally published here: https://netzwerkkrista.de/2023/08/24/eine-niederlage-des-rechtsstaats/

Yesterday, Christian Dettmar, a long-serving judge in the family division of the Weimar district court, was sentenced to two years' imprisonment, suspended for probation. The criminal division of the Erfurt district court found that there had been a violation of the law. Uncritical contemporaries may see the verdict as a victory for the rule of law.

According to the procedural observation of the Critical Judges and Prosecutors, the opposite is the case, and three points of view are briefly mentioned in this regard:

1.     A possible error of law alone - even a (formal) error in the conduct of the proceedings - does not constitute a perversion of justice on legal grounds.

2.     Circumstantial facts for an intent to pervert the course of justice could neither be determined nor proven in the main hearing.

3.     The prison sentence of two years, which can only be suspended on probation, bears the appearance of a political power move with the means of the judiciary.

This is a triple defeat for the rule of law.

What the alleged legal error is all about can only be roughly outlined on the day the sentence is pronounced. It is completely indisputable in the history of criminal law that not every error of law gives rise to a suspicion of perverting the course of justice.

Although discontented parties occasionally see it that way, and political scolding of judgements is not unknown in the history of the Federal Republic, it is therefore not correct and, above all, does not result in a criminal charge.

According to the jurisprudence of the supreme court, a violation of the law requires, among other things, that the legal opinion is unjustifiable, for example that death sentences are signed, or that reasons are decisive which are unlawful under any consideration.

The Federal Court of Justice itself summarises its authoritative case law on section 339 of the Criminal Code in the judgment of 21.01.2021, 4 StR 83/20, as follows:

"Only elementary violations of the law can be considered as a perversion of justice within the meaning of section 339 of the Criminal Code. The seriousness of the unworthy judgement is indicated by the fact that perversion of justice is classified as a crime and, in the case of conviction, the offender's judicial or civil service relationship ends by operation of law pursuant to § 24 no. 1 DRiG, § 24 para. 1 sentence 1 no. 1 BeamtStG. §. Section 339 of the Criminal Code therefore only covers breaches of the law in which the judge or public official, in managing or deciding a case, deliberately departs from the law in a serious manner in favour of or to the detriment of a party and bases his or her actions as an organ of the state on his or her own standards instead of on the law. An incorrect application of the law or the exercise of discretion is therefore not sufficient for the assumption of a perversion of justice even if the decision taken appears to be unjustifiable. In this respect, the characteristic of perversion of justice contains a normative element, which has the function of an essential regulator. Whether an elementary violation of the law has occurred is to be decided on the basis of an evaluative overall consideration of all objective and subjective circumstances. In addition to the objective weight and extent of the violation of the law, the motives that guided the judge may be of particular importance.”

The overall assessment includes the fact that the mask mandate at schools, which was handed out by decree, had no epidemiological basis at any time and was not recommended by the local health authorities on the basis of a consideration of the local situation, but was ordered without actual investigation according to the results of meetings of the prime ministers [of the Bundesländer]. This was known from the beginning, which is why a time expiry date was attached to all these decrees. The proportionality of the prescribed measures should have been clarified in the main hearing, but this was not done despite requests for evidence. The separation made by the chamber between the content of the order and the procedure cannot be justified. One should have dealt with the significance of mask mandates in schools. Regardless, the judiciary is structurally designed to correct internal errors - namely through appeals. The judiciary is also a place of differing opinions. There should and must be arguments about what is right. One must argue about which court has jurisdiction to issue orders against ordinances without a viable basis for authorisation, whether such proceedings are to be conducted by way of abstract norm control before a constitutional court, as an individual case order before the administrative court, or as a measure to protect the best interests of the child before a family court. This is not clear.

The way in which proceedings are conducted is also not clear. In the German judiciary, experts are often appointed whose opinions are known, and it is not uncommon for summary proceedings to be prepared internally. The taking of evidence in the main hearing in Erfurt did not reveal any substantiating reason for a finding of procedural arbitrariness.

The point of bias raised by the chamber does not hold water either. Everyone - without exception - formed an opinion on the Infektionsschutzgesetz (Infection Protection Act = German Covid Act) during the Covid period, including every judge. If one thinks the implicit assumption of the Regional Court of Erfurt through to the end, it becomes clear through an argumentum ad absurdum that it must be false: For then all judges - including those of the Federal Constitutional Court - would also be biased, who hold the opposite legal view and even express this in the counterfactual form of rules such as 3G, 2G, 2G with one or 2 plus [different levels of health status for entry into public places, i.e. 3 G = vaccinated, recovered, tested, 2 G = only vaccinated and recovered,, 2 G plus = vaccinated and tested with lateral test] which are changed again and again and can no longer be justified years later.

That the strong conviction alone - in whatever direction - in the question about Covid measures cannot justify bias is made clear by this consideration. Moreover, it is supported by the legal idea of § 20 para. 1 sentence 3 VwVfG. For District Court Judge Dettmar had the same opinion as a large part of the population who were critical of the Covid measures, an estimated ten to twenty million people - in contrast to the other large part of the population who did not see it that way. Both opinions are equal under the Grundgesetz [German constitution]. No one would think of imputing bias in a relevant case to a judge who followed the Covid narrative unconditionally or even fanatically and no one would demand that he should have indicated his opinion to the parties to the proceedings beforehand, otherwise he would be liable to prosecution for perverting the course of justice.

Furthermore, there is no intent to commit perversion of justice. This also applies after a change in the supreme court's jurisprudence on the requirements for intent. After 1945, when it was a matter of Nazi crimes of murder and deportation, a conviction - as the Federal Supreme Court found at the time (so BGHSt 10, 294 and BGH NJW 1968, 1339) - required inner conviction/consent and acting against one's conscience. In the new phase of dealing with past state crimes, related to the GDR, the Federal Supreme Court then changed its view. In proceedings against a former judge at the Supreme Court of the GDR (BGHSt 41, 317), who participated in death sentences and approved them as an assessor, sentenced him to a total term of imprisonment of three years and nine months because he did not dare to make his own opinion known. There is no procedural model for a conviction for adherence to a legal opinion recognised as wrong by the trial court.

Finally, the sentencing is in line with results that are currently demanded for political reasons. The prison sentence of three years demanded by the public prosecutor's office (without suspension for probation), but also the sentenced prison term of two years, give the appearance of a political power symbol against dissenters within the system. And that is the greatest defeat for the rule of law.

For this, one may refer to the reasoning of the decision of 18 August 2023, with which the Regional Court had rejected a request for evidence by the defence. It states that the court assumes in favour of the accused that he acted out of the motivation to want the best for the children concerned. Furthermore, it emerges from this decision that the defendant is primarily not accused of having made a substantively unjustifiable decision - it is rather a matter of an allegedly improperly conducted procedure. Assuming that the proceedings were in fact formally conducted in such a grossly incorrect manner that it crossed the line into perversion of justice, but that this was done out of a pure motivation to want to bring about something good: should this not be the decisive criterion for a lenient sentence?

No, the Trial Chamber seems to have been guided (with small caveats) by the prosecution's blanket formula, namely that the accused had been driven by a "high criminal energy" (an empty phrase on the level of moderately gifted law clerks) and he had destroyed confidence in the independence of the judiciary (which is precisely the regulatory reason for the liability of the perversion of justice and may not be used a second time to justify a harsh sentence).

It must be remembered that the imposition of mask mandates for schoolchildren at state schools was at no time objectively justified, as even responsible politicians have meekly admitted meanwhile. As far as the Federal Constitutional Court has ruled on legal regulations at the federal level, it has - to the detriment of the legal system - not relied on expert reports, but merely on the opinions of, for the most part, official third parties who were questioned in the proceedings and gave their personal estimations that also lacked any factual basis. The sentence - if one affirms a factual violation - was therefore based on the violation of a formally valid but materially unjustified masking obligation. Yet, the question of material justification cannot be excluded from the evidence. Injustice is not "perverted".

On the grounds of the Federal Supreme Court there is an installation in the form of a circle of letters that can be read either as "lex iniusta non est" (there is no unjust law) or also as "lex iniusta non est lex" (an unjust law is no law). If one prefers the second reading, the question of whether one can bend unjust law at all would still have to be answered.

The offence of perversion of justice has an (unusual) range of punishment between one and five years. How does one find the "just" punishment within this range? There is a study that found, on the basis of statistical evaluations, that in the most frequent cases a sentence below the middle of the sentencing range is imposed (Götting, NStZ 1998, pp. 542, 546). After all, there must still be plenty of room upwards for the particularly egregious cases (cf. BGHSt 27, 2). No distinction was even made between non-convicted and previously convicted offenders; i.e. this finding of regular imposition of relatively lenient sentences also applies to multiple offenders. The large criminal division of the Regional Court of Erfurt now reaches into the middle of the range of punishment and imposes a sentence (even if it is supposed to be based on two offences), the execution of which could only be suspended for probation - and this in the case of a completely blameless defendant who, as the court itself assumes, had only fair motives.

Together with the prosecution's request of three years imprisonment, this smacks of political justice. This encroachment of politics on sentencing principles is revisable. A sentence imposed must maintain a proportionate relationship to the degree of guilt of the offender (BVerfGE 45, 187 (260)).

The rule of law has therefore lost its prestige in these proceedings. The accused suffers damage for political reasons - like doctors, pharmacists or journalists who behaved “insubordinately”. The sentencing was also based on aspects which, according to acknowledged opinion, should not have served as a basis for the sentence.

It should be noted: A family court judge objectively protects children in his district court from health-damaging and epidemiologically largely ineffective and, moreover, unconstitutional measures of an encroaching state. For this, he is convicted of perverting the course of justice. Even if the conduct of the proceedings should not have been entirely correct: The absurdity, tragedy and falseness of this story will probably only become clear to the population in the context of a real reappraisal of the Corona period. It would be better if our judiciary already knew how to deal with such a situation properly.

A verdict was pronounced that was legally flawed in several respects. Bearing in mind the aforementioned rule that the judiciary is designed to correct internal errors, it will have to be overturned.

Cover: Video still from Talk Talk’s “It’s my life” (1984)

---

^[1] He obviously didn’t call it that in his sentence. But I, thankfully not a lawyer or judge, do.