The verdict against “mask judge” Christian Dettmar (pictured above) was essentially about his refusal to accept an opinion dictated by “official sources.” Ultimately, the aim is to deflect the accusation that the judiciary systematically failed during the Corona crisis.
On April 8, 2021, Weimar family court judge Christian Dettmar had prohibited two schools from mandating the wearing of masks, maintaining minimum distances, and participating in rapid Corona tests. Subsequently, the Erfurt public prosecutor’s office initiated an investigation against him on suspicion of perverting the course of justice, including searches of his office and private residence. On August 23, 2023, the Erfurt Regional Court sentenced Dettmar to a two-year suspended prison sentence for perverting the course of justice. On November 20, 2024, the 2nd Senate of the Federal Court of Justice upheld the verdict on appeal. According to the Federal Court of Justice’s reasoning, aspects such as whether the defendant intended to prevent endangerment of child welfare or not, whether the mask requirement in schools was effective or not, whether it endangered child welfare or was harmless, whether it was proportionate or unconstitutional in the end, should be irrelevant to the question of elementary violation of the law. Matthias Guericke comments on the now available written justification of the verdict.
On November 20, 2024, the appeal verdict of the 2nd Criminal Senate in the criminal proceedings against Judge Christian Dettmar (Case No. 2 StR 54/24) was announced in Karlsruhe and orally justified. A brief preliminary comment on this has already appeared on this website (Achgut reported). Since February 7, the written justification of the verdict has been available, making a comprehensive critique of the verdict now possible. To anticipate the result: The justification of the verdict must leave every lawyer speechless, regardless of their stance on Corona measures. Only by breaking a fundamental rule of rational argumentation does the Senate arrive at the rejection of the appeal.
The critique follows these steps:
First, it is presented which actions the defendant is to be held accountable for according to the Senate regarding the accusation of perverting the course of justice (criminal behavior). Then – and this is already the astonishing highlight of the Senate’s argumentation – it is explained to what extent he sees the elementary violation of law required for perverting the course of justice as given. The argumentation on the criminal success is skipped because complicated and lengthy explanations would be necessary to make it understandable for non-lawyers, which would not add anything decisive to the critique in the end. Therefore, the discussion of intent follows directly. The conclusion is an attempt to explain how such a verdict is even possible.
The criminal behavior
The Erfurt Regional Court had stated in its verdict of August 23, 2023 (1) that the accusation of perverting the course of justice did not arise from the assumption of one’s own jurisdiction, nor from a violation of the right to be heard by failing to hear the children and parents before the decision or from the use of expert opinions before granting the other parties the right to be heard. It also did not arise from a violation of the jurisdictional plan by including children in the decision for whom Judge Dettmar was not responsible. These accusations from the indictment were all not elementary violations of law in the sense of § 339 StGB (verdict, p. 124 f.).
However, the defendant had made himself guilty of perverting the course of justice by “disregarding judicial independence for extraneous motives” and conducting the proceedings “precisely because of his bias and prejudice” (verdict, p. 125). The perversion of justice was thus supposed to consist in Judge Dettmar having conducted the proceedings, so to speak, “in a state of bias.” Behavior attributed to the defendant, such as the selection of experts, was not supposed to constitute the accusation of perverting the course of justice itself according to the Regional Court’s conception, but only to prove bias.
On the KRiStA website (2), it has already been explained in detail that in the case of bias, only the omission of self-disclosure according to § 6 FamFG in conjunction with § 48 ZPO can be considered as an accusation, because self-disclosure, the justification of which another judge has to decide, is the duty to act that arises for a judge from the concern of his own bias. There is, on the other hand, no right of self-recusal by which he could “remove” himself from proceedings.
Lack of neutrality (3) and bias can, of course, also be the cause of concrete procedural violations. However, if a judge does not violate any procedural rules or substantive law, lack of neutrality can never justify an accusation of perverting the course of justice. Ultimately, only the concrete legal violations count, because criminal law only sanctions external behavior and not inner attitudes. Lawful action, taken with the “wrong” inner attitude, remains lawful.
The Senate takes no offense at the strange description of the criminal act by the Regional Court. Surprisingly, the duty of self-disclosure in case of concern of bias is not even mentioned once in the entire verdict (4). Instead, it states that the Regional Court “without legal error assumed that the defendant, in conscious disregard of procedural rules – partly concealed, from the outset purposefully and interest-driven – initiated a family court child protection procedure, conducted it with bias and, by issuing a temporary injunction, gave effect to his preconceived opinion from the beginning through the function assigned to him, thereby objectively and subjectively fulfilling the elements of § 339 StGB” (para. 36) (5). Nevertheless, in the Senate’s verdict, the (alleged) procedural violations have an independent significance, the accusation of disregarding the requirement of judicial neutrality is added or encompasses everything, as will be explained in more detail.
Nothing remains of the accusation of a violation of law
The Senate sees three violations of procedural rules in the proceedings conducted by Judge Dettmar:
(1) He first states that the criminal chamber correctly assumed that the defendant had already violated procedural rules in an elementary way when initiating the proceedings (para. 37) by working towards a corresponding procedure within his jurisdiction despite his bias. However, he then admits that child protection proceedings under § 1666 BGB are always initiated ex officio and that the defendant was therefore allowed to initiate the proceedings himself if there were sufficient indications of a child’s welfare being endangered (para. 41). The Senate even states that the suggestion of proceedings under § 1666 BGB may also be recorded in writing by the responsible judge and that the parties involved may also be supported in terms of content (para. 41). From the Senate’s point of view, Judge Dettmar was therefore not only allowed to initiate the proceedings, it was also not objectionable that he reviewed a draft of the parents’ written suggestion for the two children and made corrections before it was submitted to the court. One might think that nothing remains of the accusation of an elementary violation of law in the initiation of proceedings, which is of central importance in the Regional Court’s verdict. Almost nothing, because the Senate still has something to criticize: It states that Judge Dettmar should have made a file note about the assistance in filing the application and about his own preconceived opinion (para. 41)…. This accusation seems almost curious in the context of a perversion of justice proceeding. Nowhere in the law is it explicitly regulated when a judge must make a file note and when not (6). Whether, for example, a note is made about a telephone call – perhaps the most frequent occasion for file notes – is handled differently from case to case. This will be most necessary if something substantive has been discussed with a party to the proceedings and the concern of bias could arise in another party to the proceedings if the content were not documented in the files. Here, however, the Senate itself has stated that the assistance in filing the application was legally unproblematic. Certainly, Judge Dettmar could have made a note about it, but why the knowledge of this process could be so important for the other parties that by omitting it “fundamental principles of the procedure in child matters” would be violated, as the Senate claims in a high tone (para. 41), is not at all comprehensible. And Judge Dettmar’s “preconceived opinion” was already made clear to the other parties by the initiation of the proceedings. There is no reason for a family court judge to record in a file note when initiating child protection proceedings that he sees indications of a child’s welfare being endangered.
Child welfare endangerment through mask requirement in school
(2) The second procedural violation is supposed to lie in the selection of the three experts Prof. Kämmerer, Prof. Kappstein and Prof. Kuhbandner. It seemed hardly conceivable that the Senate would not recognize the absurdity of the Regional Court’s argumentation at this point, which had ultimately stated that although the three expert opinions might not be objectionable in any way in terms of content, the defendant should nevertheless not have selected these experts because they – like himself – were critical of the measures.
The Senate refers (para. 43) to the criteria for the selection of experts in court proceedings, such as orientation towards professional competence and, if several experts have equal expertise, selection according to dutiful discretion, whereby no extraneous motives should play a role, only to then claim that the defendant had made a selection decision that did not meet these standards because he had selected the experts “result-oriented and according to the measure of their scientific conviction conforming to his preconceived opinion” (para. 44). The selection of experts was indeed “result-oriented” insofar as Judge Dettmar hoped for scientifically convincing expert opinions on the questions posed, while he considered this less likely with other possible experts. However, every judge is virtually obliged to such “result orientation”, it is nothing other than orientation towards professional competence. An accusation could only be made against Judge Dettmar if he had assumed that the experts would provide “false” expert opinions. But this is absurd and is not claimed by the Senate either.
(3) The third accusation is that the defendant committed significant violations of the right to be heard by not hearing either the children affected by the order or the parents before the decision. A reason in the sense of § 159 para. 3 FamFG, § 160 para. 3 FamFG for dispensing with the hearings before the decision – here only danger in delay would come into consideration – had not existed. (para. 44 f.)
It seems correct that Judge Dettmar should have personally heard at least the two children whose parents suggested the proceedings, and their parents before the decision, because there was actually enough time for this since the initiation of the proceedings and thus no danger in delay. But even the Regional Court denied that this was a procedural violation of sufficient weight for an accusation of perverting the course of justice (verdict, p. 125).
If a prescribed hearing before a decision is dispensed with due to danger in delay, it must be made up for immediately (§ 159 para. 3 sentence 2 and § 160 para. 4 FamFG). If a different picture then emerges, the decision can and must be corrected ex officio (§ 54 para. 1 FamFG). If the omission of the prior hearing is supposed to be an elementary violation of law in the sense of § 339 StGB, something would also have to be said – since the consequences of a violation of law must also be considered in the assessment (7) – about whether the hearings would have changed anything about the decision. This is not to be assumed: Based on the expert opinions, Judge Dettmar had come to the conclusion that the mask requirement in school endangered the welfare of the children affected by it, so that for him, the individual subjective feeling of being affected by the children, which could have been expressed by them or their parents in the hearings, was not decisive (8)…. A further violation of the right to be heard is supposed to lie in the fact that the parties did not receive the expert opinions before the decision and could not comment on them. However, this cannot support an accusation of perverting the course of justice already because in the temporary injunction procedure determined by urgency, by no means all parties must be granted the right to be heard on all facts considered by the court before the first decision. Upon application by the parties according to § 54 para. 2 FamFG, an oral hearing would have had to be held and a new decision would have had to be made on the basis of the oral hearing. In this context, the right to be heard on the expert opinions would then have been granted.
Never sufficient for an accusation of perverting the course of justice
The bottomline:
From the Senate’s point of view, Judge Dettmar is to be accused of not having made a file note about having provided assistance in suggesting the proceedings and that he affirmed the suspicion of a child’s welfare being endangered, that he commissioned experts critical of the measures, although the expert opinions themselves – already due to lack of engagement with them – cannot be objected to in terms of content, and finally, that he violated the right to be heard because he did not conduct personal hearings before issuing the decision and did not grant the parties the right to be heard on the expert opinions.
This is all that the Senate has to accuse him of in terms of concrete procedural violations, and this is, even if one were to consider all three accusations justified with the Senate, never sufficient for an accusation of perverting the course of justice according to previous standards of the Federal Court of Justice’s jurisprudence. It needs an overarching accusation with which the procedural violations and then also Judge Dettmar’s entire procedural behavior can be morally charged so strongly that someone who cannot independently examine the elements of perverting the course of justice gets the impression that Judge Dettmar actually did something absolutely unforgivable for a judge (9).
This overarching accusation is that of violating the requirement of judicial neutrality. The alleged procedural violations are framed as violations of this requirement (para. 48), then the “outstanding importance” of the neutrality of judges “for the rule of law and the citizens’ trust in its existence” is emphasized and the defendant is accused of having “abused the position of power granted to him as a judge by the constitution” (para. 49). At this point, the argumentation detaches itself from the concrete individual accusations, the entire behavior of the defendant is – as in the justification of the verdict of the Regional Court – cast in the gloomy light of a violation of the requirement of neutrality.
Footnotes:
- The judgment is not published in the legal database juris, but it has been uploaded to the website of Judge Dettmar’s defense attorney.
- Guericke: Just a Weakness of Justice? Once Again: The Judgment of the Erfurt Regional Court Against Christian Dettmar, Section 3a.
- It has already been explained in detail in Section 3d that neutrality cannot be expected from a judge in child protection proceedings, only objectivity in handling the matter. For further details, see Hoven/Rostalski, Limits of Judicial Misconduct in Cases of Bias, NStZ 2024, p. 65.
- This may not be coincidental. If the Senate were to view the allegation as Judge Dettmar being obligated to self-report and failing to do so, insurmountable difficulties would arise regarding intent: It would have to be proven that the accused was at least aware (i.e., with conditional intent) that he might be obligated to self-report and deliberately accepted the violation of duty. However, the Regional Court made no findings on this matter, and there is no indication that such findings could be made upon referral back.
- All paragraph references below pertain to the publication of the judgment on the Federal Court of Justice’s website or in juris (the numbering with paragraphs is identical). The judgment is also published on openJur.de (with differing paragraph numbering).
- The Senate itself writes that the provisions regarding procedures in FamFG implicitly assume this (para. 41).
- Details on this will follow immediately.
- In family court practice, it is not uncommon for interim orders (often at the suggestion of youth welfare offices) to be issued without prior hearings of the parties involved, with hearings conducted later. If prosecutors were to request family court files in all such cases to examine whether there was indeed imminent danger or whether the order could have waited a few days for a hearing to be conducted, they would likely encounter complete incomprehension from family judges.
- Even jurists can fall victim to this suggestion: Lawyer and journalist Tanja Podolski expressed “speechlessness” in an unusually emotional article on LTO dated November 21, 2024, over jurists who do not consider the BGH decision correct. She argued that it is every jurist’s responsibility—excluding Judge Dettmar’s defense attorneys—to support this judgment. In doing so, she also attacked renowned professors like Volker Boehme-Neßler, Elisa Hoven, and Frauke Rostalski. Criticism of the judgment against Judge Dettmar challenges her self-image, her colleagues’ work at LTO, and the rule of law.
- BGH rulings cited: May 13, 2015 (3 StR 498/14), January 21, 2021 (4 StR 83/20), August 18, 2021 (5 StR 39/21), September 14, 2017 (4 StR 274/16), August 15, 2018 (2 StR 474/17), November 29, 2022 (4 StR 149/22), April 18, 2024 (6 StR 386/23).
- An assertion unsupported by evidence throughout the judgment!
- To avoid misunderstandings: Of course, the BGH is not “bound” by its own jurisprudence. It can abandon established jurisprudence on a specific issue but must do so explicitly and provide reasoning. This did not happen here. The Senate does not question the binding nature of established jurisprudence but immediately claims an exception that does not exist as long as this jurisprudence remains valid.
- Two hints here: Regarding causation of harm, the Senate deviates from established BGH jurisprudence requiring specific danger of an incorrect final decision due to procedural violations for criminal liability success when it considers any deterioration in procedural situations sufficient (paras. 33 and 52). This aligns with some legal scholars’ views (e.g., LK-Hilgendorf StGB §339 para.87; Matt/Renzikowski/Sinner StGB §339 para.27), which previously contradicted BGH jurisprudence. However, even based on this view, the Senate errs when claiming that issuing an interim order worsened Thuringia’s procedural situation only remedied by OLG’s appeal decision (para.52). Interim orders are final decisions; thus determining whether they constitute unlawful harm depends on their correctness—this question remains unanswered by the Senate.
- Exceptions existed but are rare and can almost be counted on one hand where reflected in published decisions.
- The practice of replacing evidence collection by citing supposedly independent authorities persists: Currently in vaccine injury trials courts avoid evidence collection on COVID-19 vaccines’ risk-benefit ratio citing EMA approval as proof of positive ratios (see Stöbe: A Hurdle Race Against Walls—Civil Liability for COVID-19 Vaccine Injuries).
- See Guericke: Just a Weakness of Justice? Once Again: The Judgment of Erfurt Regional Court Against Christian Dettmar, Section 3c—Personal Opinions as Grounds for Bias.
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