A court in Weimar, Germany, has ruled that two schools should be prevented – with immediate effect – from forcing their pupils to wear masks, along with imposing social distancing measures and insisting on SARS-CoV-2 rapid tests, saying that “the state legislature regulating this area has gotten far removed from the facts, which has taken on seemingly historic proportions”. On mask-wearing, the court ruled that “the risk of infection is not only not reduced by wearing the mask, but is increased by [the widespread] incorrect handling of the mask”. The court also said “there is no evidence that compliance with distance regulations can reduce the risk of infection” and that “the regular compulsion to take a test puts the children under psychological pressure, because their ability to go to school is constantly put to the test”. The case was brought to court by a mother on child protection grounds.
There follows the text of an article published by 2020 News on this ruling – translated from German to English by Google. We think it’s so good we are reproducing it in full.
On April 8th, 2021, the Weimar Family Court decided in an urgent procedure (Az .: 9 F 148/21 – available in English here) that two schools in Weimar are prohibited with immediate effect from prescribing pupils to have mouth and nose coverings of all kinds (in particular wearing qualified masks such as FFP2 masks), complying with AHA minimum distances and/or taking part in SARS-CoV-2 rapid tests. At the same time, the court ruled that face-to-face teaching must be maintained.
For the first time, evidence has now been taken before a German court regarding the scientific meaningfulness and necessity of the prescribed anti-Covid measures. Hygiene doctor Professor Dr med Ines Kappstein, the psychologist Professor Dr Christof Kuhbandner and the biologist Professor Dr of Human Biology Ulrike Kämmerer have been heard.
The court proceedings are so-called child protection proceedings in accordance with Section 1666 Paragraphs 1 and 4 of the German Civil Code (BGB), which a mother had initiated for her two sons at the age of 14 and eight at the local court – the family court. She had argued that her children would be harmed physically, psychologically and educationally without any benefit to the children or third parties. This would also violate numerous rights of children and their parents under the law, the constitution and international conventions.
The proceedings according to § 1666 BGB can be initiated ex officio, either at the suggestion of any person or without such a person, if the court considers intervention to be necessary for reasons of the child’s best interests, § 1697a BGB.
After examining the factual and legal situation and evaluating the reports, the Weimar Family Court came to the conclusion that the now prohibited measures represent a current risk to the mental, physical or emotional well-being of the child to such an extent that further development without intervention is reasonably likely to foresee significant harm.
The judge stated:
…children are not only endangered in their mental, physical and spiritual well-being but are also currently damaged by the obligation to wear face masks during school time and to keep their distance from one another and from other people. This violates numerous rights of children and their parents under the law, the constitution and international conventions. This applies in particular to the right to free development of 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 education and care by parents (also with regard to health care measures and ‘objects’ to be carried by children)…
With his judgment, the judge confirms the mother’s assessment:
The children are damaged physically, psychologically and educationally and their rights are violated, without any benefit for the children themselves or for third parties.
According to the conviction of the court, school administrators, teachers and others could not invoke the state legal provisions on which the measures are based, because they are unconstitutional and therefore null and void. Reason: You violate the principle of proportionality rooted in the rule of law (Articles 20, 28 of the Basic Law).[The judge stated]:
According to this principle, which is also known as the prohibition of excess, the measures envisaged to achieve a legitimate purpose must be suitable, necessary and proportionate in the narrower sense – that is, when weighing the advantages and disadvantages achieved with them. The measures that are not evidence-based, contrary to Section 1 (2) IfSG, are already unsuitable for achieving the fundamentally legitimate purpose they pursue, namely to avoid overloading the health system or to reduce the rate 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 they cause are not offset by any discernible benefit for the children themselves or for third parties.
Nevertheless, it should be pointed out that it is not the participants who have to justify the unconstitutionality of the interference with their rights, but rather the Free State of Thuringia, which encroaches on the rights of those involved with its state regulations, has to prove with the necessary scientific evidence that the measures prescribed… are suitable to achieve the intended purposes, and that they, if necessary, are proportionate. So far, that has not yet happened.
1. The lack of benefit to the children themselves and third parties from wearing a mask and observing distance regulations
To convince the court, the expert Professor Kappstein, after evaluating the entire international data situation on the subject of masks, stated that the effectiveness of masks for healthy people in public has not been proven by scientific evidence.
The verdict says:
Likewise, “third-party protection” and the “unnoticed transmission”, with which the RKI justified its “reassessment”, are not supported by scientific facts. Plausibility, mathematical estimates and subjective assessments in opinion contributions cannot replace population-based clinical-epidemiological studies. Experimental studies on the filter performance of masks and mathematical estimates are not suitable for proving effectiveness in real life.
The international health authorities are in favour of mask-wearing in public spaces, but also say that there is no evidence from scientific studies for this. Rather, all currently available scientific results suggest that masks have no effect on the infection process. 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 the report. 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 follow-up with authors from the field of macroeconomics without epidemiological knowledge – remains the decisive one, as explained in detail by the reviewer Epidemiological fact[s were] not taken into account that the infection values … – before the introduction of the mask requirement in Jena on April 6th, 2020 (about three weeks later in the whole of Germany) – decreased significantly and by the end of March 2020, there were no more relevant infections in Jena.
The masks are not only useless, they are also dangerous, the court ruled:
As the appraiser further explains, every mask must be worn correctly in order to be effective in principle. Masks can become a contamination risk if touched. On the one hand, however, they are not worn properly by the population and, on the other hand, they are very often touched with their hands. This can also be seen in politicians… on television. The population was not taught how to use masks correctly, there was no explanation of how to wash your hands while on the move or how to effectively disinfect your hands. It [was also not taught] why hand hygiene is important and how to be careful not to touch your eyes, nose and mouth with your hands. The population was virtually left alone with the masks. The risk of infection is not only not reduced by wearing the mask, but is increased by incorrect handling of the mask. In her report, the expert explains this in detail as well as the fact that… it is “unrealistic” to achieve the appropriate use of masks by the population.
The judgment also [said]:
The transmission of SARS-CoV-2 through “aerosols”, i.e., through the air, is not medically plausible and scientifically unproven. It represents a hypothesis that goes back mainly to aerosol physicists who, according to the reviewer, understandably cannot assess medical relationships based on their specialist field. The “aerosol” theory is extremely harmful to human coexistence and means that people can no longer feel safe in any interior, and some are even afraid of infection by “aerosols” outside of buildings. Together with the “unnoticed” transmission, the “aerosol” theory means that every fellow human being is at risk of infection.
The changed statements of politics to masks, first cloth masks in 2020, then since the beginning of 2021 either surgical masks or FFP2 masks, lack any clear line. Even if surgical masks and FFP masks are both medical masks, they have different functions and are therefore not interchangeable. Either the politicians that made these decisions did not themselves understand what [each] type of mask is basically suitable for, or it does not matter to them, but only the symbolic value of the mask. From the expert’s point of view, the mask decisions of politics are incomprehensible and, to put it mildly, can be described as implausible.
The reviewer also points out that there are no scientific studies on keeping a distance outside of medical patient care. In summary, in their opinion, only the following rules can be drawn up to convince the court:
1. Maintaining a distance of about 1.5 m (1-2 m) when making face-to-face contact if one of the two people has symptoms of a cold can be considered a sensible measure. In the scientific sense, however, it is not secured, but there is only evidence… that it is an effective measure to protect yourself from contact with the pathogen by droplets of respiratory secretions if the contact person has signs of a cold. An all-round distance, on the other hand, does not make sense to protect yourself if the contact person has a cold.
2. Keeping an all-round distance or even just a vis-à-vis distance of about 1.5 m (1-2 m) when none of the people present shows signs of a cold is not supported by scientific data. As a result, however, the coexistence of people and in particular the carefree contact among children is very severely impaired, without any benefit in terms of infection protection being discernible.
3. Close contacts, i.e., less than 1.5 m (1-2 m), between students or between teachers and students or between 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 in school or even with adults somewhere in public is far too short for droplet transmission to occur. This is also shown by studies from households where, despite the close coexistence with numerous skin and mucous membrane contacts, only a few members of the household become ill when someone has a respiratory infection.
The court also followed the assessment of Professor Kappstein with regard to the transmission rates of symptomatic, presymptomatic and asymptomatic people. It said:
According to her statements, presymptomatic transmissions are possible, but not inevitable. In any case, according to her, they are significantly lower when evaluating real contact scenarios than when using mathematical modelling.
A systematic review with meta-analysis of Covid transmissions in households published in December 2020… compares a higher, but still not excessive transmission rate in symptomatic index cases of 18% with an extremely low transmission in asymptomatic cases of just 0.7%. The possibility that asymptomatic [people], formerly known as healthy [people], transmit the virus is therefore meaningless.
In summary, the court stated:
There is no evidence that face masks of various types can reduce the risk of infection from SARS-CoV-2 at all or even significantly. This statement applies to people of all age groups, including children and adolescents as well as to asymptomatic, presymptomatic and symptomatic people.
On the contrary, there is rather the possibility that the more frequent hand-face contact when wearing masks increases the risk of coming into contact with the pathogen or bringing it into contact with other people. For the general population, there is no risk of infection, either in public or in private, which the wearing of face masks (or other measures) could reduce. There is no evidence that compliance with distance regulations can reduce the risk of infection. This applies to people of all age groups, including children and young people.
Even after the extensive findings of the expert Professor, According to Kuhbandner, there is “no high-quality scientific evidence to date that wearing face masks can significantly reduce the risk of infection”.
According to the expert’s findings, the recommendations of the RKI and the S3 guideline of the professional associations are based on observational studies, laboratory tests on the filter effect and modelling studies, which only provide low and very low levels of evidence, because no really valid conclusions on the effect from such studies due to the underlying methodology can be removed from masks in everyday life and at schools. In addition, the results of the individual studies are heterogeneous and more recent observational studies also provide contradicting results.
The judge stated:
In addition, the extent to which the risk of infection can be reduced by wearing a mask in schools is very low, because infections very rarely occur in schools even without masks. Accordingly, the absolute risk reduction is so low that a pandemic cannot be fought in a relevant way with it…
According to the expert, the currently allegedly increasing number of infections in children is in reality due to the fact that the number of tests in the children… has increased sharply. Since the risk of infection in schools is very small, even with a possible increase in the infection rate with the new virus variant B.1.1.7 in the range assumed in studies, it is not to be expected that the virus spread in schools is increasing significantly.
This little benefit is offset by numerous potential side effects related to the physical, psychological and social well-being of children that many children would have to suffer to prevent a single infection. The expert presents these in detail, among other things, using the register of side effects published in the Pediatric Journal.
2. The inappropriateness of PCR tests and rapid tests for measuring the incidence of infection
Regarding the PCR test, the court wrote:
… In her report, Kappstein points out that only genetic material can be detected with the PCR test used, but not whether the RNA comes from viruses that are capable of infection and therefore capable of replication (= capable of reproduction)…
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.
Because the test cannot differentiate 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 be found many months after the immune system has “dealt with” the problem) and “living” matter, i.e., a “fresh”, reproductive virus.
For example, PCR is also used in forensics to reproduce residual DNA from hair residues 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 performing the PCR, including all preparatory steps (PCR design and establishment, sampling, preparation and PCR execution) and the test is positive, i.e., a genome sequence detects… the specific “Corona” virus (SARS-CoV-2), this does not mean under any circumstances that the person who tested positive is infected with a replicating SARS-CoV-2 and consequently for others Contagious to people = dangerous.
Rather, to determine an active infection with SARS-CoV-2, additional, specifically diagnostic methods such as the isolation of viruses that are capable of replicating must be used.
Regardless of the fundamental impossibility of determining an infection with the SARS-CoV-2 virus with the PCR test, the results of a PCR test also depend on the statements of the expert Professor Dr. The treasurer depends on a number of parameters which, on the one hand, cause considerable uncertainties and, on the other hand, can be manipulated in such a way that many or a few (apparently) positive results are achieved.
Two striking sources of error should be singled out.
On the one hand, this includes the number of target genes to be tested. This was successively reduced from the original three to one in accordance with the guidelines of the WHO.
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 actually infected person results in a result of 2,690 false positively tested people due to an average error rate determined in an instant interlaboratory comparison. If three target genes were used, there would only be 10 false positives.
If the 100,000 tests carried out were to be carried out representative of 100,000 citizens of a city/district within seven days, this reduction in the target genes used with regard to the “daily incidence” alone results in a difference of 10 false positives compared to 2,690 false positives and thereof depending on the severity of the restrictions on freedom of the citizens.
If the correct “target number” of three or even better (as in Thailand, for example) up to six genes had been used for the PCR analysis, the rate of positive tests and thus the “seven-day incidence” would have been almost completely zero reduced.
On the other hand, one of the sources of error is the so-called ct value, i.e., the number of amplification/doubling steps up to which the test is still rated as “positive”.
The reviewer points out that, according to unanimous scientific opinion, all “positive” results that are only recognised from a cycle of 35 onwards have no scientific (i.e., no evidence-based) basis. In the range ct value 26-35, the test can only be assessed as positive if compared with virus cultivation. The RT-qPCR test for the detection of SARS-CoV-2, which was propagated worldwide with the help of the WHO, however (and following all other tests based on it as a blueprint) was set to 45 cycles without a CT value for “positive” define.
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 information). Thereafter, if the test result does not match the clinical findings of the person examined, a new sample must be taken and a further examination carried out and differential diagnostics carried out; only then can a positive test be counted according to these specifications.
According to the statements in the expert report, the rapid antigen tests used for the mass test cannot provide any information about infectivity, since only protein components that are unrelated to an intact, replicable virus can be detected with them.
In order to allow an assessment of the infectiousness of the tested persons, the respective positive test carried out (similar to the RT-qPCR) would have to be individually compared with the cultivation of viruses from the test sample, which is impossible under the extremely variable and non-verifiable test conditions.
Finally, the expert points out that the low specificity of the tests causes a high rate of false-positive results, which have unnecessary personal (quarantine) and social (e.g. schools closed, “outbreak reports”) consequences until they turn out to be false positives. The error effect, i.e., a high number of false positives, is particularly strong in tests on those without symptoms.
It should be noted that the PCR test used, as well as the rapid antigen tests, as has been proven by experts, are in principle not suitable for determining an infection with the SARS-CoV-2 virus. In addition, there are the sources of error described and other sources listed in the report with serious effects, so that an adequate determination of the infection process with SARS-CoV-2 in Thuringia (and nationwide) is not even rudimentary.
In any case, the term “incidence” is misused by state legislators. Because “incidence” actually means the occurrence of new diseases in a defined group of people (repeatedly tested and possibly medically examined) within a defined period of time, see No. 11 of the court’s legal information. In fact, however, undefined groups of people are tested in undefined periods of time, so that what is reported as “incidence” is only a matter of simple reporting rates.
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% and is therefore no higher than in moderate influenza epidemics.
Ioannidis also came to the conclusion in a study published in January 2021 that lockdowns had no significant benefit.
3. Violation of the right to informational self-determination through rapid tests in schools[The court continued:]
The right to informational self-determination as part of the general right of personality in Article 2, Paragraph 1 of the Basic Law is the right of the individual, in principle, to determine himself about the disclosure and use of his personal data. This personal data also includes a test result. This is also a personal health “date” within the meaning of the General Data Protection Regulation (GDPR), which is basically nobody’s business.
This encroachment on fundamental rights is also unconstitutional. Because with the specific test procedures in schools, it seems inevitable that numerous other people (classmates, teachers, other parents) would become aware of, for example, a “positive” test result.
This also applies accordingly if similar test barriers are set up for access to shopping or cultural events.
In addition, a possible test obligation for schoolchildren under state law is already not covered by the Infection Protection Act – regardless of the fact that this in turn is exposed to considerable constitutional concerns.
According to Section 28 IfSG, the competent authorities can take the necessary protective measures in the manner specified there if “sick people, suspected illnesses, suspected contagious persons or people who have eliminated the disease” are identified. According to § 29 IfSG, these can be subjected to observation and then also have to tolerate the necessary investigations.
In its decision of March 2nd, 2021, Ref .: 20 NE 21.353, the Bavarian Administrative Court refused to consider employees in nursing homes to be sick, suspected of being ill or dropping out from the outset. That should also apply to schoolchildren. Classification as suspected of being contagious 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 a sufficient degree of probability is suspected of being contagious within the meaning of Section 2 No. 7 IfSG; a mere distant probability is not enough. What is required is that the assumption that the person affected has ingested pathogens is more likely than the opposite. The only decisive factor for suspicion of infection is the probability of a previous infection process, see judgment of March 22nd, 2012 – 3 C 16/11 – juris Rn. 31 ff. The BayVGH, op. Cit., Has rejected this for employees in the care professions. Nothing else applies to schoolchildren.
4. The right of children to education and schooling
Regarding the educational entitlement of the children, the judge stated:
The schoolchildren are not only subject to compulsory schooling regulated by state law, but also have a legal right to education and schooling.
This is also derived 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 primary school compulsory and free of charge for all, but also promote the development of various forms of secondary schools of general and vocational education, make them available and accessible to all children (!) and take appropriate measures such as [to meet] the introduction of free of charge and the provision of financial support in case of need. The educational goals from Article 29 of the UN Convention on the Rights of the Child are to be complied with.
The judge summarised his decision as follows:
The compulsion imposed on schoolchildren to wear masks and to keep their distance from one another and from third parties damages the children physically, psychologically, educationally and in their psychosocial development, without any more than marginal benefit for the children themselves or third parties. Schools do not play a major role in the “pandemic” event.
The PCR tests and rapid tests used are on their own in principle and not even initially suitable for determining an “infection” with the SARS-CoV-2 virus. According to the statements in the expert report, this already results from the own calculations of the Robert Koch Institute. According to RKI calculations, such as expert Professor Dr Kuhbandner explains, in mass tests with rapid tests, regardless of symptoms, the probability of actually being infected if a positive result is obtained is only 2% with an incidence of 50 (test specificity 80%, test sensitivity 98%). That would mean: For every two genuinely 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 to carry out mass tests without cause, on asymptomatic persons, i.e., healthy people for whom 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 take a test puts the children under psychological pressure, because their ability to go to school is constantly put to the test.
In conclusion, the judge noted:
Based on surveys in Austria, where masks are not worn in primary schools, but rapid tests are carried out three times a week, according to the explanations of the expert Prof. Dr. Kuhbandner:
100,000 primary school students would have to put up with all the side effects of wearing a mask for a week in order to prevent just one infection per week.
To describe this result as disproportionate would be a completely inadequate description. Rather, it shows that the state legislature regulating this area has gotten far removed from the facts, which has taken on seemingly historic proportions.