The accusation of miscarriage of justice is based on the fact that the family court was not authorised to rule against schools in this case at all, as this falls under the responsibility of the administrative courts. According to media reports, the Public prosecutor’s Office in Erfurt sees “indications that the accused has arbitrarily accepted his jurisdiction, even though it was an administrative matter for which only the administrative procedure is open”.
Questions about caring for the well-being of a child
In its decision on the schools, the family judge had referred to Section 1666 para. 4 BGB. According to §1666 BGB, family judges may, for reasons of care for the well-being of a child, issue orders which relate above all to natural persons in the environment of the child. In paragraph 4, this power is extended to “third parties”. A central question to be clarified now is whether a public institution such as a school can also be defined as such a “third party”. The facts of the bending of the law may exist if a judge violates mandatory legal provisions and he wilfully ignores a clear wording of the law. The lawyer of the judge, Gerhard Strate, in an interview:
“The person concerned must deliberately violate the right. There must be a purpose. This can be said here, if one looks at the infinitely careful justification of the decision of the District Court Weimar, but not even in the beginning.”
The ”Tagesschau” sees it as follows:
“What happened in Weilheim and Weimar? The two court decisions simply saw the schools of the respective children as “third parties” within the meaning of the law. According to the decisions, the schools should therefore refrain from enforcing the prescribed mask obligation. But this is legally questionable because the rule of law actually provides completely different ways for such legal issues: whether the actions of the administration correspond to law and order is to be examined by the administrative courts. Among other things, they are there to protect the citizen from an encroaching state, so they are also responsible for questions about the legality of corona measures.”
According to his own information, Strate has requested access to the investigation files, but has not yet been able to access them. He describes the search of his client’s house as “a scandalous procedure”. This is a “direct intervention in judicial independence”. Although the judge had taken a different legal position than the administrative court had taken a little later, this did not make him a litigator, according to Strate. The lawyer does not want to impute the motive of intimidation to the public prosecutor’s office in Erfurt in view of the ordered search of the house, “but it amounts to the fact that it unfolds this effect”.
Wait for reasons and oral proceedings
The decision of the family court had already been partially cashed by the Administrative Court of Weimar. In the explanatory statement, the Administrative Court of Weimar, for example, certified to the Robert Koch Institute that “in a transparent procedure” the available scientific findings would be comprehensively taken into account there”. For the" characterization " of, for example, the expert and psychology professor Christof Kuhbandner appointed by the family Court, the administrative court referred to a tendentious article in Deutschlandfunk. For the final evaluation of the" Masken judgment " of the Weimar Family Court, it should be waited for whether such rather weak reasons for content will survive in the requested oral proceedings, as the reflection pages have already described.
For a final evaluation and comment on the investigation against the family judge, the outcome and the detailed justifications should also be awaited. However, it is to be noted that the impression of a drastic approach has arisen, which must be justified all the more convincingly.
Media complain “Wild West-Rule of law”
Court decisions that oppose corona measures have been criticized in some media in sometimes dubious severity. For example, the “Redaktionsnetzwerk Deutschland” asks why “judges would help the virus” :
“Whoever as a judge always wants to wait for the escalation for reasons of proportionality, helps the virus until then – and makes the necessary interventions even more serious and lengthy.”
The “taz” sees because of the judgments of Weimar and Weilheim even a “Wild West rule of law” raise and fears:
“There are also lateral thinkers and kindred spirits in the judiciary.”
Does the “emergency brake” restrict legal recourse for citizens?
This concern should now be somewhat subdued for the time being: according to critics, the new “emergency brake” has the potential to partially exclude the level of administrative courts, as reported by the “Süddeutsche Zeitung”. For example, the SPD member of the Bundestag Florian Post with four fellow campaigners, represented by the Freiburg law professor Dietrich Murswiek, is suing against the “emergency brake”, among other reasons: With the directly applicable” law on measures", any possibility for the administration to adapt the restrictions to local conditions, for example, is out of proportion – this is disproportionate.
In addition, the citizens thus the legal protection at the administrative courts is cut off, it remains only the passage to the Constitutional Court, according to Florian Post according to SZ.
Constitutional Court: Almost all corona applications rejected
But how promising is this move to the Federal Constitutional Court (BVerfG) in connection with the corona measures for the citizens? Almost all corona applications to the BVerfG were rejected, as media reports. Of the 283 constitutional complaints (by mid-February), 231 had already been rejected and three withdrawn. In 2020, according to the report, 240 complaints related to corona issues, 170 of which were associated with an urgent application. 72 Pure urgent applications were added. In 2021, a further 43 constitutional complaints related to corona were added by mid-February, 23 of which were related to an urgent application. A further seven urgent applications were received. balance:
“So far, only three urgent applications have been successful at the BVerfG, all in April 2020.”