Attorney General applies for judgement against Weimar family court judge to be set aside

Trial observers: Corona reappraisal arrives at the Federal Supreme Court / Judge Christian Dettmar had banned compulsory masks in schools in 2021 / Critical judges and public prosecutors fear postponement

Source: Multipolar, 03 Sep 2024 Karlsruhe / Weimar. (multipolar)

In the oral hearing in the appeal proceedings on the judgement of the Erfurt Regional Court against the Weimar family court judge Christian Dettmar, the representative of the Federal Public Prosecutor General’s Office (GBA), Dr. Tobias Handschell, applied to the 2nd Criminal Senate of the Federal Court of Justice (BGH) for the judgement to be set aside and for new main proceedings. As the online magazine “Legal Tribune Online” reports (28. August), Handschell believes that the objective facts of the case are clearly fulfilled. However, there were no statements in the grounds for the judgement to justify the intent of the offence.

In an interview of the radio station “Kontrafunk” (29 August), lawyer Michael R. Moser, who was present as a trial observer during the hearing, pointed out that a “gross error” must have occurred in the judgement of the Erfurt Regional Court if the JCC requests a reversal and a new trial. Moser also said that with the appeal proceedings, “a part of the not yet taking place, but very necessary processing of Corona” had “arrived” at the Federal Court of Justice.

Furthermore, Moser hopes that the court will acquit Dettmar and thus correct the “inconsistency of previous BGH case law on the subject of obstruction of justice”. If this does not happen, there will be a completely new trial, which could also “end with a completely different result”. An appeal may then be lodged against the result, meaning that it could take “quite some time” before there is “legal clarity” in this case.

The “Network of Critical Judges and Public Prosecutors” (KRiStA), of which Dettmar is a member, has dealt with the proceedings against the Weimar district judge in three detailed articles. According to the network, the Erfurt Regional Court’s grounds for judgement are based solely on the accusation that Dettmar deliberately did not recuse himself from the case, which concerned the compulsory wearing of masks in Weimar schools, even though he was biased. However, the mere lack of self-rejection could “never constitute a criminal offence”.

When asked by Multipolar, the KriStA network explained that it was not surprised by the application for the judgement to be overturned “from a legal perspective”. However, a possible retrial of the case, including the taking of evidence before a different criminal division of the Erfurt district court, would put the clarification on the “back burner”. “Given the prevailing mood among many judges”, it is to be feared “that there will again be a tendency to convict”. However, nobody would come up with the idea that “these colleagues are biased” or would therefore commit “obstruction of justice”, as Dettmar is accused of doing.

In April 2021, Dettmar, in his role as a family court judge, issued a ruling prohibiting the compulsory wearing of masks at two schools in Weimar for the benefit of the children. Following an appeal by the Thuringian Ministry of Education, the Thuringian Higher Regional Court revoked the order shortly afterwards. At the same time, the public prosecutor’s office in Erfurt launched an investigation against Dettmar on suspicion of obstruction of justice, searched his office, his home and his car and confiscated his mobile phone. Searches were also carried out at the offices of the experts Dettmar had consulted when justifying his decision.

In August 2023, Dettmar was sentenced to two years’ imprisonment on probation for obstruction of justice at the Erfurt district court. The public prosecutor’s office had demanded three years without parole. Both the defence and the public prosecutor’s office then applied to the Federal Court of Justice for an appeal – the defence because it wanted to obtain an acquittal, the public prosecutor’s office because it wanted to enforce the sentence it had demanded. In his closing statement to the BGH, Dettmar, who has been a judge since 1996, emphasised that children are particularly close to his heart. According to trial observer Moser, Dettmar also explained that he had conducted the case carefully, discussed it with colleagues and weighed up his jurisdiction. He had not given anyone an unlawful advantage or disadvantage and had clarified the facts of the case as accurately as possible.

Several lawyers had criticised in recent months that most German judges – in contrast to Dettmar – had not independently clarified facts in connection with corona measures, but had relied on statements from government authorities. The director of the Fulda Social Court, Carsten Schütz, criticised the fact that there were hardly any judicial hearings of experts or proportionality checks during the coronavirus crisis. Constitutional law expert Volker Boehme-Neßler said that German courts should have dealt with the arguments of those critical of the measures, but instead “ignored” them and uncritically adopted the often politically predetermined claims of the Robert Koch Institute. Jessica Hamed, a lawyer and lecturer at Mainz University of Applied Sciences, had criticised the interference of justice ministers and senior officials in the work of public prosecutors, including in coronavirus proceedings.