Sensational verdict from Weimar: no masks, no distance, no more tests for pupils (Germany)
Article Source: Children's Health Defense
On 8 April 2021, the Weimar Family Court ruled insummary proceedings (Ref.: 9 F 148/21) that two Weimar schools are
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 (full text of the ruling including three expert opinions).
For the first time, 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. Ulrike Kämmerer were heard.
The court case is a so-called child protection case according
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 Court –
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, this would violate numerous rights of the
children and their parents under the law, the constitution 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 has come to the
conclusion that the now prohibited measures pose a present danger to the
child’s mental, physical or psychological well-being to such an extent that
significant harm can be foreseen with a high degree of certainty in the event
of further development without intervention.
The judge states: “Such a danger is present here. For 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 currently 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 from Article 2 of the
Basic Law as well as to the right from Article 6 of the Basic Law to upbringing
and care by the parents (also with regard to measures for health care and
“objects” to be carried by children)….
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. Reason: they
violate the principle of proportionality rooted in the rule of law (Articles
20, 28 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 and disadvantages they achieve. 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
said.
He clarifies: “Nevertheless, it must be pointed out that
it is not the parties involved who would have to justify the
unconstitutionality of the encroachments on their rights, but conversely the
Free State of Thuringia, which encroaches on the rights of the parties involved
with its state law provisions, would have to prove with 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.”
1. The lack of benefit of wearing masks and observing
distance rules for the children themselves and third parties
To the conviction of the court, the expert Prof.
Kappstein, after evaluating the entire international data situation on the
subject of masks, stated that the effectiveness of masks for healthy persons in
public is not proven by scientific evidence.
The ruling states: “Likewise, ‘third-party 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 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, as the expert explains in detail in her report. This is
because the 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 – fails to take into account the decisive
epidemiological circumstance, as explained in detail by the expert, that the
infection levels already declined significantly before the introduction of
mandatory masks in Jena on 6 April 2020 (about three weeks later in the whole
of Germany) and that there was no longer any relevant incidence of infection in
Jena as early as the end of March 2020.”
The masks are not only useless, they are also dangerous,
declared the judges: “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. In her expert opinion, the expert sets this out
in detail, as well as the fact that and for what reasons 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 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. The expert conclude
that 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) in case of
vis-Ã -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;
there is only evidence or it can 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-Ã -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
apparent benefit in terms of infection protection. 3.
– close contacts, i.e. under 1.5 m (1 – 2 m), among pupils
or between teachers and pupils or among colleagues at work, etc., do not pose a
risk even if one of the two contact persons 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 follows Prof Kappstein’s assessment regarding
the transmission rates of symptomatic, pre-symptomatic and asymptomatic people.
It writes:
“Pre-symptomatic transmissions are possible, according to
her, but not inevitable. In any case, according to her, they are significantly
lower in the evaluation of real contact scenarios than in mathematical
modelling.
From a systematic review with meta-analysis on Corona
transmission in households published in December 2020, it contrasts a higher
but still not excessive transmission rate in symptomatic index cases of 18%
with an extremely low transmission in asymptomatic cases of only 0.7%. The
possibility that asymptomatic people, previously referred to as healthy people,
transmit the virus is therefore meaningless.”
In summary, the court states, “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 persons.
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.”
Even after the extensive findings of the expert Prof. Dr.
Kuhbandner, according to the reasons for the judgement, “there is no
high-quality scientific evidence to date 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
professional societies are based on observational studies, laboratory studies
on the filter effect and modelling studies, which only provide low and very low
evidence, because no really valid conclusions on the effect of masks in
everyday life and at schools can be drawn from such studies due to the
underlying methodology. In addition, the results of the individual studies are
heterogeneous and more recent observational studies also provide contradictory
findings.”
The judge states: “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.”
2. The unsuitability of PCR tests and rapid tests for
measuring the occurrence of infections
Regarding the PCR test, the court writes: “The expert Prof.
Dr. Kappstein already points out in her expert opinion 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 confirms 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.
For example, PCR is also used in forensics to amplify
residual DNA from hair remains or other trace materials by means of PCR in such
a way that the genetic origin of the perpetrator(s) can be identified (“genetic
fingerprint”).
Even if everything is done “correctly” when carrying out
the PCR, including all preparatory steps (PCR design and establishment, sample
collection, preparation and PCR performance), and the test is positive, i.e.
detects a genome sequence which 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 was tested positive is infected with a replicating SARS-CoV-2
and is therefore infectious = dangerous for other persons.
Rather, 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.
Independent of the basic impossibility to detect 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, cause considerable uncertainties and, on the
other hand, can be deliberately manipulated in such a way that many or few
(apparently) positive results are obtained.
Of these sources of error, two striking ones are to be
singled out.
One of these is the number of target genes to be tested. This
was successively reduced from the original three to one according to the WHO
guidelines.
The expert calculates that the use of only one target gene to be tested in a
mixed population of 100,000 tests with not a single person actually infected
results in 2,690 false positives based on a mean error rate determined in an
interlaboratory comparison. Using 3 target genes would result in only 10 false
positives.
If the 100,000 tests carried out were representative of
100,000 citizens of a city/county within 7 days, this reduction in the number
of target genes used alone would result in a difference of 10 false positives
compared to 2,690 false positives in terms of the “daily incidence” and,
depending on this, the severity of the restrictions on the freedom of the
citizens taken.
If the correct “target number” of three or even better (as
e.g. in Thailand) up to 6 genes had been consistently used for the PCR
analysis, the rate of positive tests and thus the “7-day incidence” would have
been reduced almost completely to zero.
On the other hand, the so-called CT-value, i.e. the number
of amplification/doubling steps up to which the test is still considered
“positive”, is one of the sources of error.
The expert points out that according to unanimous scientific
opinion, all “positive” results that are only detected from a cycle of 35 have
no scientific (i.e.: no evidence-based) basis. In the CT range 26-35, the test
can only be considered positive if it is matched with virus cultivation. The
RT-qPCR test for the detection of SARS-CoV-2, on the other hand, which was
propagated worldwide with the help of the WHO, was (and following it, all other
tests based on it as a blueprint) set to 45 cycles without defining a CT value
for “positive”.
In addition, when using the RT-q-PCR test, the WHO
Information Notice for IVD Users 2020/05 must be observed (No. 12 of the
Court’s Legal Notice). According to this, if the test result does not
correspond to the clinical findings of an examined person, a new sample must be
taken and a further examination must be carried out as well as differential
diagnostics; only then can a positive test be counted according to these
guidelines.
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.
In order to allow an estimation of the infectivity of the
tested persons, the positive test carried out in each case (similar to the
RT-qPCR) would have to be individually compared with the cultivability of
viruses from the test sample, which is impossible under the extremely variable
and unverifiable test conditions.
Finally, the evaluator points out that the low
specificity of the tests causes a high rate of false positive results, which
lead to unnecessary personnel (quarantine) and social (e.g. schools closed,
“outbreak reports”) consequences 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.
It remains to be stated that the PCR test used, as well as
the antigen rapid tests, are in principle not suitable for detecting an
infection with the SARS-CoV-2 virus, as proven by the expert opinion. In
addition, there are the described and other sources of error listed in the
expert opinion with serious effects, so that an adequate detection of the
infection with SARS-CoV-2 in Thuringia (and nationwide) does not exist.
In any case, the term “incidence” is misused by the state
legislator. Incidence” actually means the occurrence of new cases in a defined
group of persons (repeatedly tested and, if necessary, medically examined) in a
defined period of time, cf. no. 11 of the legal information of the court. In
fact, however, undefined groups of people are tested in undefined periods of
time, so that both what is passed off as “incidence” are merely simple
reporting data.
In any case, according to a meta-study by medical scientist
and statistician John Ioannidis, one of the most cited scientists worldwide,
published in a WHO bulletin in October 2020, the infection fatality rate is
0.23%, which is no higher than that of moderately severe influenza epidemics.
Ioannidis also concluded in a study published in January
2021 that lockdowns have no significant benefit.
3. The violation of the right to informational
self-determination by rapid tests in schools
The right to informational self-determination, as part of
the general right of personality in Article 2(1) of the Basic Law, 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.
This applies accordingly if similar test barriers are
erected for access to shopping or cultural events.
In addition, any compulsory testing of schoolchildren under
Land law is already not covered by the Infection Protection Act – irrespective
of the fact that this itself is subject to considerable constitutional
concerns.
According to § 28 IfSG, 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 BayVGH, loc. cit.,
has rejected this for employees in nursing professions. Nothing else applies to
schoolchildren.”
4. The children’s right to education and schooling
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
results 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.”
5. Conclusions
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 mass-test in 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.”
