They’re coming for the judges…again.
5 July 2021
The offence of “Rechtsbeugung” in German law is not easy to translate. The best match we have for it in English is the offence of “misconduct in public office”. Misfeasance in public office, according to Archibold, is committed by
(a) a public officer acting as such who
(b) wilfully neglects to perform his duty and/or wilfully misconducts himself
(c) to such a degree as to amount to an abuse of the public’s trust in the office holder,
(d) without reasonable justification.
I have not been able to find any examples of judges being prosecuted for misconduct in public office in this country. However, this past fortnight in Germany, no less than eight searches have been carried out in the homes of judges, their expert witnesses, a guardian ad litem and others associated with a controversial ruling regarding Covid-19 restrictions. I posted on Judge Christian Dettmar’s ruling in early April and subsequent investigation here. Reminder: Judge Dettmar issued an injunction against two schools in Weimar to stop them imposing masking, social distancing and testing. This was in his view necessary in order to avert (further) compromising of children’s welfare.
Renewed searches have been carried out in family court Judge Dettmar’s office, home and car. As part of his ruling, Judge Dettmar had relied upon the three experts. All had their homes and offices were searched and their cell phones, computers and various documents were confiscated.
Judge Matthias Guericke, who was not associated with Judge Dettmar’s decision, had also made a decision critical of the measures in Weimar (see my post on that ruling here). On 29 June his laptop and mobile were confiscated by the police and his premises and home searched.
On what basis were these search warrant issued? Judge Dettmar’s defence counsel has provided a press release, in which he explains that this new search on Judge Dettmar was ordered at the request of the local public prosecutor’s office by order of the Erfurt District Court on 22nd June 2021.
As in the previous search on April 26, 2021, his cell phone was again seized (although it had already been mirrored). In addition, his laptop was again confiscated, on which his correspondence with his defence counsel is located. In addition to the search at my client’s home, a search was also ordered and carried out at the home of another fellow judge in Weimar.
What was the legal basis, the alleged offence for which the search warrants were issued? The Erfurt District Court received an allegation of “Rechtsbeugung”, or misconduct in public order, from the Public Prosecutor. That Court backed up its decision that Judge Dettmar had been guilty of misconduct in public office because he wrongly assumed he had competence to hear the application made in April, and, further, that he “had been in contact with third parties in the run-up to his decision” [my italics]. In the court’s view Judge Dettmar laid himself open to that charge by commissioning certain experts to initiate the proceedings. The Erfurt Court suggested that he had used the “alleged risk to the well-being of children” in order to
publicly disseminate his personal attitude and opinion on the protective measures to contain the Corona pandemic.
Legal and Factual Background
Whatever you think of this allegation, it is hard to understand why it has been followed with such invasive police activity. The Federal Administrative Court recently ruled in a case of the a very similar nature to Judge Dettmar’s ruling in April that the family courts do have jurisdiction to consider public measures that affect children, so that Judge Dettmar was right to consider himself competent to hear a mother’s complaint that Coronavirus measures were compromising the welfare of children in Weimar schools. But the Federal Court concluded that the judge should not have carried investigated the claim of endangerment of the welfare of the child because his judicial instruction was directed against a public authority.
This is not entirely straightforward; there are cases in German jurisprudence that have held that instructions against governmental entities in the health care system are permitted by § 1666 of the German Civil Code. That provision suggests that the special protection under which children are subject in accordance with the UN Convention on the Rights of the Child, to which Germany is signatory, is embodied in the special review and regulatory competence of family judges. Supporters of this argument say that if one were to deny a duty to investigate in these instances, children in state schools would be in a worse position than in private schools. The children would have to defend themselves in protracted administrative court disputes against damaging conditions in the schools. Family judges are not hobbled by so much bureaucracy and therefore constitute a decision making authority which can properly uphold children’s best interests.
There may still be a need for legal clarification here in detail, but there can be no “misconduct in public office” if the judge in question adopts a position that is defensible in law, in the present case this is the paramountcy of a child’s best interests.
According to press coverage of these events, the mother, who had initiated the proceedings in accordance with § 1666 of the German Civil Code (BGB) in the initial case heard by Judge Dettmar in April, has filed an appeal with the Federal Supreme Court (BGH) against the denial of Judge Dettmar’s jurisdiction.