Failure of Justice E-Book

Johannes Ludwig

• Herausgeber: novum publishing
• Kategorie: Gesellschafts- und Liebesromane
• Sprache: Englisch

Seitenzahl: 477

Veröffentlichungsjahr: 2025

Beschreibung

Are you "in God's hands" in court and on the high seas? No: In the hands of the judges! Called "judicial independence". And this is infinite. It can even lead to miscarriages of justice. Subsequent apologies? Not a chance! In other words: the judiciary operates in a legal vacuum. Countless examples document this. The German constitutional state functions in part as it did over 100 years ago. That's how old the abuses are. And the organization of the courts. That is why we should not rely on the much-vaunted principle of the rule of law. The examples cited above show how judicial errors can destroy people's lives and how helpless we are as victims. Nevertheless: what you can do if you (actually) can't do anything: Read for yourself!

Leseprobe

Table of Contents

Failure of Justice: Self-Righteousness, Judicial Arrogance and Lacking Error Culture in Germany

Note

Table of contents

Why this book

CHAPTER 1: Lisa's world: two decades in the 1st instance. Because "neither procedural violations nor

CHAPTER 2: How easy it is for an authority to harass a citizen and for the judiciary to be at their

CHAPTER 3: Social courts: 90% of judgments to the detriment of the injured party. Or: How the social

CHAPTER 4: How judicial independence , judicial ignorance and a lack of error culture are connected

CHAPTER 5: Pilot and Captain Markus FENZEL in the fight against empathy-less judges and prosecutors

CHAPTER 6: "I'm not reading 110 pages!" The Gustl MOLLATH case : On the "unholy alliance " between j

CHAPTER 7: Judges and their experts - Experts as secret judges

CHAPTER 8: "Free evaluation of evidence " by judges: First a false culprit and then none. The case o

CHAPTER 9: When people (have to) go to prison for being innocent. Lack of a culture of error and ret

CHAPTER 10: A "bathtub murder" that wasn't one: 13 years innocent in prison. Judicial fantasy in a c

CHAPTER 11: NRW State Social Court: 93 % rejections. How a judge stands up for "fair hearing " and j

CHAPTER 12: What you can (still) do as a victim if there is (actually) nothing you can do. Hints & t

CHAPTER 13: What is going wrong. What needs to change. How it would be possible. Why nothing is happ

Imprint

Failure of Justice: Self-Righteousness, Judicial Arrogance and Lacking Error Culture in Germany

Note

The texts often refer to "we". This refers to myself, but also to all those who have contacted me in connection with the work of the "ansTageslicht.de"-project and presented their problems. And those who have helped me by pointing out this and that.

Table of contents

Why this book

CHAPTER 1:

Lisa's world: two decades in the 1st instance. Because "neither procedural violations nor other legal errors by a judge are grounds for recusal."

CHAPTER 2:

How easy it is for an authority to harass a citizen and for the judiciary to be at their beck and call

CHAPTER 3:

Social courts: 90% of judgments to the detriment of the injured party. Or: How the social courts bleed an engineer financially dry using every trick in the legal book

CHAPTER 4:

How judicial independence , judicial ignorance and a lack of error culture are connected in the German judiciary

CHAPTER 5:

Pilot and Captain Markus FENZEL in the fight against empathy-less judges and prosecutors

CHAPTER 6:

"I'm not reading 110 pages!" The Gustl MOLLATH case : On the "unholy alliance " between judges and experts

CHAPTER 7:

Judges and their experts - Experts as secret judges

CHAPTER 8:

"Free evaluation of evidence " by judges: First a false culprit and then none. The case of Harry WÖRZ

CHAPTER 9:

When people (have to) go to prison for being innocent. Lack of a culture of error and retrials - a legal disaster

CHAPTER 10:

A "bathtub murder" that wasn't one: 13 years innocent in prison. Judicial fantasy in a circumstantial trial. The case of Manfred GENDITZKI

CHAPTER 11:

NRW State Social Court: 93 % rejections. How a judge stands up for "fair hearing " and justice . And is punished for it

CHAPTER 12:

What you can (still) do as a victim if there is (actually) nothing you can do. Hints & tips for those who get caught up in the mills of justice

CHAPTER 13:

What is going wrong. What needs to change. How it would be possible. Why nothing is happening anyway. A summary

Literature on the topic of failure of justice

Why this book

Everyone knows the phrase: “In court and on the high seas, you are in God's hands.” A phrase that obviously reflects widespread experience. After all, the phrase has been around for a long time and is attributed to the ancient Romans. In any case, this catchphrase does not stand for “legal certainty”. On the contrary: if the outcome of a trial becomes incalculable, this is a poor testimony for a constitutional state. Even for the Federal Republic of Germany as a constitutional state? This question can at least be answered in advance by asking further questions:

Is it normal in this country that judges (can or are allowed to) act against “law and justice”? What is the quality of the constitutional state when judges can simply ignore decisions of the highest German court that have “constitutional character” and the Federal Constitutional Court can do absolutely nothing about it? Except to point out that in such cases constitutional complaints would be accepted benevolently, but the rate of accepted complaints is 1.079 percent (2022)?

How is it possible that judges, when faced with unpleasant or uncomfortable proceedings and decisions, first try to psychiatrize those who demand their rights? - In legal terms: to have their “capacity to stand trial” checked?

And if that doesn't work, then drag out such processes, with experts and expert costs, according to the motto 'At some point, the plaintiff will (have to) give up because they are running out of steam' - financially and mentally? Or to go for a 'biological solution' at the same time? More on this in chapter 1.

Is it possible or acceptable for judges to make secret phone calls and agreements behind the back of a plaintiff who is trying to assert his justified claim with the defendant system, which is actually supposed to perform but does not want to, i.e. a kind of covert collusion between the court and official institutions - according to the idea that everything that embodies the “state” is fundamentally in the right, as described in Chapter 3?

And how does it work in dubious criminal trials when the guilt of a defendant is not really proven and a verdict “in the name of the people” can only be based on circumstantial evidence? Are the judges' “free evaluation of evidence” then allowed to go so far as to transfer their own world view, which they form in their legal “bubble”, to the real world, i.e. to the defendant, and still send him to prison, negating the elementary principle of “In dubio pro reo”? For years? And is it worthy of a constitutional state that it then takes well over ten years before the judiciary is prepared to admit a drastic mistake? See chapters 8 to 10 for just a few questions. This book documents several cases that do not shed a good light on our legal and judicial system. But that is only one point. The other is that nothing has changed for decades. Decades means: for over 100 years - that's how old or resistant the German legal system is.

Nothing comes from the justice system itself, which is not to be expected. After all, systems that function according to their own rules and do not allow any external stimulation, let alone control, remain in their own logic and cannot be changed from within.

This is one of the main reasons: The judicial system is less transparent than few other areas. The democratic public is excluded, from ordinary citizens to their “representatives” in the parliaments, the members of parliament. Although the latter, as the “legislature”, are able to prescribe legal regulations, they no longer have any influence over whether public prosecutors (“executive”) or even judges (“judiciary”) adhere to them. This even goes so far that politicians do not dare to criticize judges, for example, or even give well-intentioned advice, because “judicial independence” has virtually taken on a life of its own in this country and can lead an uncontrollable and non-transparent life of its own from the outside.

This is one of the core theses of these cases and of this book: judges act in a legal vacuum because there is no control and even fewer quality assurance mechanisms (chapter 4).

The reference to the next or higher instance and, in case of doubt, the final appeal instance comes from those who don't really know their way around. There is such a thing in civil jurisdiction, at least most of the time. In criminal cases before a regional court, the BGH is the second and final instance. But it no longer reviews the facts and even less the (complete) evidence, it only looks at whether the grounds for the judgment are conclusive, to put it simply. And so it can happen that the criminal senate of the Federal Court of Justice, as the court of appeal, confirms a guilty verdict the first time, then overturns an acquittal in the meantime and confirms the new acquittal the third time - always in the same case. The victims: “in God's hands”.

Could or should one speak of “obstruction of justice” in such cases, when those affected are thwarted and/or ripped off by the judiciary according to all the rules of the legal art? The term “obstruction of justice” is not found in any German law. There is a paragraph on obstruction of justice in the German Criminal Code (StGB), but it only applies there. There is also a provision entitled “obstruction of justice”, which is even punishable. But whether someone “bends the law” or not is again decided by judges. Specifically: judges judge judges.

Objective decisions cannot result from this. When judges (have to) pass judgment on colleagues, it is not a neutral matter. For this reason, the situations addressed here in the form of questions, which will be discussed shortly, have no chance of being interpreted as “obstruction of justice”. Case law therefore subsumes under this criminal offense above all cases in which judges use illegal methods due to overwork and/or incompetence in order to cover up their weak completion statistics. Of course, this is not right. But it would probably be more helpful to solve such problems in a different and more targeted way. And not with the help of criminal law.

It is the same situation with bias applications “due to concerns of bias” against a judge (or against an expert appointed by the judge). They are rejected almost 100% of the time because judges have to judge their colleagues again. A former OLG judge, who will have his say, has identified “camaraderie” as the reason. It is true that supreme court case law has clearly stated that this must be a right of each party “if there is a reason that is suitable to justify mistrust of the impartiality of a judge”, as the law (Section 42 of the Code of Civil Procedure) states. But are judges even capable of certifying the “impartiality” of their own colleagues? Or to put it another way: to accuse them of “partiality”?

Testimonials are usually issued by neutral persons and/or institutions who do not (or should not) feel obliged to either side. For this reason, differences of opinion that lead to disputes, whether between two citizens (civil law) or citizens versus the state (authorities, tax office, etc.) or the state versus citizens (criminal law), are not decided within these groups, but by a third body, in this case the courts. And this should also be the case if the impartiality of such a body itself is called into question. This could or should be done by an arbitration body that has nothing to do with the challenged decision-making body, see Chapter 13.

Since the great banking crisis of 2008 at the latest, we have learned what can happen when systems maintain their own “independent” audit institutions. This is even worse in the justice system. Here, people may not only be at the mercy of a judge, for better or worse, where a third party could “doubt the impartiality” of the judge from the point of view of the person rejecting the case. It also applies, for example, that “neither procedural violations nor other legal errors by a judge constitute grounds for recusal” for a judge. Quote from an OLG president. And it is not his private opinion, but reflects current case law. In plain language: A judge cannot be held accountable. Neither for bias nor for errors of law nor for (blatant) errors of judgment. Judges are “independent” and act - it should be emphasized once again - in a legal vacuum.

In principle, the “independence” of judges is a good thing. But only if they abide by “law and justice”, as codified in Article 20 of the German Basic Law. But this is simply not the case across the board. And then the problems begin. In other words, those affected are “in God's hands” and cannot rely on everything that happens to them in the judicial system being done properly.

The problems described here are real. The interpretations and conclusions drawn from them may be partly exaggerated. But if this or that is not formulated clearly or pointedly enough, it will be overlooked. The purpose of this book, however, is to encourage questioning and reflection. For as many people as possible. Because the “shortcomings” that the justice system uses to describe its mistakes and mishaps - if at all - have consequences.

Consequences for those affected, consequences for others, ultimately consequences for everyone when (more and more?) people - a frequent quote - “lose faith in the rule of law”. And that is why the failure of justice threatens social cohesion and our democratic coexistence. And that is why we should not stand idly by and watch this happen. Hence this book.

It is designed in such a way that the most important, because fundamentally unsolved problems are demonstrated and explained using concrete examples: Stories that are still not over in individual cases. But they all show what is going wrong in the German justice system. In contrast to most other books that deal with judicial issues, the cases come from several areas; from civil law (medical liability, family law, freedom of expression and publication law, social jurisdiction) as well as criminal law. Technical terms (which you should know) are placed in quotation marks. Quotations and so-called “sound bites” are also in italics.

Important contexts and/or legal standards are sometimes explained in separate 'boxes' with their own headings - wherever this is necessary for a better understanding of the legal subject matter. In the penultimate chapter, there are hints and tips on what you can (perhaps) do if you, as the person concerned, cannot (actually) do anything, if you run the risk of being pulled over the judge's table. And the final chapter discusses what needs to change, how this would be possible and why nothing is happening anyway.

In the appendix there is a bibliography with references to who else has written books on this topic and why and for what purpose. And there is a rough outline of what you can read in it.

Some of the stories documented here are available in even more detail and with the relevant documents on the platform DokZentrum ansTageslicht.de. This is an online medium that I set up together with students in connection with my former teaching activities in Hamburg and which is now being continued in a slightly different context following my retirement. The respective links are mentioned here with each story. An internet platform like this, which complements the book, also has the advantage that you can add and/or update content at any time. For example, if something new comes up in a case.

And “last but not least”: the now fashionable “gendering” is dispensed with here. It saves space. And not only that: as long as only “m” and “w” are “gendered” and “d” is left out, this is nothing more than a “political correctness” fad for me. If it is, then it should be solved holistically, i.e. completely. Just like the problems of judicial failure.

Johannes Ludwig,

[email protected]

CHAPTER 1: Lisa's world: two decades in the 1st instance. Because "neither procedural violations nor other legal errors by a judge are grounds for recusal."

Judicial scandal or everyday justice in Lower Saxony? We asked the members of parliament at . They don't want to comment: Judges are independent and you're not allowed to say anything. Ergo: judges can do what they want. This is also the case here.

Further keywords: Göttingen Regional Court in Lower Saxony, medical malpractice proceedings , application for bias , patient file , falsification of documents , free presentation of evidence and judicial ignorance, connecting facts in expert opinions

***

They had tried it once before. In 2009, around 14 years ago. With a plan. And they had already chosen someone to implement it: someone who had often been at their service. Unfortunately, he was now dead. No reason to abandon the plan. At least that was the view of the three judges at Göttingen District Court under their presiding judge Gerhard von HUGO .

The plan of the 3 district court judges: to have the plaintiff declared insane by a probationary expert. In legal terms: to examine her for her "capacity to stand trial ". A common method for judges who have made mistakes and cannot admit it. Or do not want to. And who no longer know how to get rid of a person who demands their rights and insists on a fair trial. Judges call such citizens "troublemakers ", and the legal literature provides specific guidance. For example, "Die Prozessfähigkeit eines Querulanten" is the title of one such specialist article in the "Monatszeitschrift für Deutsches Recht", issue 2/2009. This specialist article, which had barely been published, was immediately filed away (Ref. 2 O 1097/08); the most important passages are marked in red.

But the plaintiff, Lisa HASE had not fallen on her head. And in 2009 - year 5 of her court case against several dentists - she was able to undermine her judges' plan. She filed an application for "guardianship" with the competent local court herself due to her limited legal capacity. This was (of course) rejected, and to be on the safe side in the German constitutional state, she lodged an appeal with the regional court, where her above-mentioned lawsuit was to be heard. Lisa Hase underwent a psychiatric assessment, a social worker inspected her personal circumstances and the judges of another chamber of the Göttingen Regional Court (of course) had to reject the appeal. She was "saved" for the time being, as she says. And the plan of her "legal judges" was dead. Just like the chosen expert.

The judges at Göttingen District Court had chosen "Dr. Uwe-Christian Rutetzki" from Winsen an der Luhe, who described himself as a "specialist in psychiatry ", a "specialist in psychotherapy and psychoanalysis" and a "psychoanalyst DGIP" and also felt he was responsible for "forensic psychiatry". The regional "Kreiszeitung/Wochenblatt" newspaper devoted an entire series to him, describing obscure cases in which RUTETZKI had acted as an expert witness in court and ensured that people were forcibly committed to a psychiatric ward or placed under supervision. Or were generally incapacitated with the diagnosis of a "paranoid and querulant personality disorder". This was probably what the Göttingen judges of the (then 2nd) civil chamber had in mind for Lisa HASE . They were clearly overwhelmed by what the qualified supervisor and psychotherapist had put on the bench: a lawsuit against the dental clinic of the University Medical Center Göttingen (UMG) and later two lawsuits against a Göttingen dentist, whom we have given "No. 12" here in the order of appearance during the treatments.

The first complaint against No. 12 had to be upheld immediately: Lisa Hase wanted to inspect her patient file . No. 12 had refused her access. The legal situation is clear. This was not the case with her second claim for damages "due to gross malpractice " against No. 12 - the third of her claims in total. The problem for the Göttingen judges was that the defendant No. 12 was himself acting as an expert witness in Göttingen courts at the time. He was also a member of the arbitration board of the Lower Saxony Dental Association, Göttingen district office. No. 12 has a collegial relationship with the court, so to speak - a classic conflict of interest. And the Göttingen District Court also has difficulties with this.

An easy solution would be more pleasant. For the judges and the defendant. And so the judges were also grateful for his arguments and suggestions: The plaintiff had consulted "over 20 practitioners" sometimes in parallel, her "pain pattern" was "hardly assignable by experts" and "the entry in almost all index cards [probably meant: of the "over 20 dentists"] that the plaintiff must have psychological problems strongly suggests a mental illness." His advice to his judicial colleagues: "Obtain a psychological expert opinion." In other words: the lady is probably mentally ill.

The prehistory as a short flashback: Odyssey with dentists no. 1 to 9

Generally speaking, it can quickly happen that you have bad luck with a toothache and have to go to a dental emergency room, e.g. a university hospital. Depending on which of the trainee dentists is on duty and how well the documentation turns out, i.e. how well the next dentist is informed, further complications can arise. A first error generates a second and then another. Ultimately, everything multiplies quite quickly. This was also the case with Lisa HASE , where one of the first dentists had the wrong tooth X-rayed and the second then inevitably did not treat the 'right' tooth correctly, specifically: did not treat it. The third then stated that the caries in the 'right' tooth had already reached the nerve, which is why the tooth could no longer be saved. The tooth gap was then treated with a bridge by the fourth dentist.

But practitioner no. 4 did not read the documentation, which clearly stated that the pain indicated occlusal disorders. He therefore did not remove the bridge, but fitted a bite splint instead. However, this was characterized by incorrect contacts and the pain in a total of 7 teeth became unbearable. At a new appointment at the dental clinic, dentist no. 5 forgot to disinfect the root canal before sealing it. The result: severe bone inflammation.

After being treated by a total of 10 dentists, 4 independent practitioners and 6 dentists at the dental clinic over a period of 4 years, our protagonist was physically and mentally at the end of her tether. The qualified supervisor and psychotherapist went to a recognized psychotherapist herself and asked for crisis support. His advice: dentist no. 12, who also works as a dental expert, on the arbitration committee of the dentists' association and in court. So it can only be good!

But the problems didn't end there, they continued, for example in such a way that a colleague of dentist no. 12, dentist no. 15, left the root cleaning to an MTA, which is actually forbidden, and the dental assistant broke off an instrument part without realizing it. This was then noticed by the endontologist, No. 18, who became necessary, resulting in another bone infection.

And so it went on and on, botches and mishaps everywhere. For Lisa HASE : constant pain. At some point she was at her wits' end, wanted to understand how this was possible and began to read up on dental literature. She wanted to warn others. And she decided to claim compensation : from the dental clinic and from dentist no. 12 & colleagues.

She changed spheres without realizing it. The dental odyssey turned into a legal one. Also without end. And so the story continues.

The patient file

When Lisa HASE receives copies of her patient file after winning her case against dentist no. 12, she is astonished. She is presented with 5 separate handwritten documents. Strange: she only ever remembered one single file the whole time. If only because in a group practice the exchange of information between the different practitioners must be guaranteed. After all, she was not only treated by no. 12 in this practice, but also by no. 13 and 15. And on top of that: There is a sign at the entrance to the large practice that reads: "Group practice".

And she is puzzled by another oddity: the 5 individual patient files are each written in apparently identical handwriting. Lisa HASE remembers that sometimes this dental assistant wrote the notes, sometimes that one.

And so she asks herself several questions: What does this mean? Were the patient files possibly rewritten retrospectively? For the purpose of submission to the court? And partially changed in the process? Why, for example, is a specific treatment appointment missing, which the practice has billed to the health insurance company?

Evidence and burden of proof in medical malpractice proceedings

In this country, anyone who wants to enforce something against someone else under civil law must provide the necessary evidence. If he doesn't have it: bad luck.

Patient files that are kept by the doctors themselves are characterized by a special feature: The doctors create their (counter)evidence themselves. And they can also manipulate them if they wish, for example if they are handwritten. Nowadays, much of this documentation is done using a computer. But depending on the software, a computer-based file may or may not be audit-proof . Audit-proof means that subsequent changes are not only immediately recognizable, but also that it is possible to reconstruct what was there before.

According to the latest case law, the Federal Court of Justice has ruled that only patient documentation that is kept in an audit-proof manner is admissible as evidence. But that is of little use to Lisa HASE . Her files were handwritten. And so one can only argue in court by means of circumstantial evidence as to whether here, there and everywhere manipulation has obviously taken place retrospectively.

In such cases, you should generally check whether the data and information are identical to what a doctor bills the health insurance company for. They are willing to help. They themselves have an interest in uncovering fraud.

That's why Lisa HASE has no answers to her questions for the time being. And no opportunity to investigate the oddities and contradictions. Over the next few years, she is mentally blocked because the malaise with her massive toothache overrides everything she does. In addition, she is disappointed with her lawyer, who has 'messed up' the statement of claim against the dental clinic.

On top of that, the dental association has recommended an expert from Marburg for the purpose of securing evidence , who not only studied and completed his doctorate at this very dental clinic, but is now supposed to secure evidence against his colleagues. A first-class conflict of interest. And so it is perhaps no wonder that the expert makes mistake after mistake. First he mixes up the colleagues responsible, then his evidence photos can no longer be found. Neither the expert nor the judges responded to Lisa HASE's request to at least correct the mistakes. And the request for an oral hearing in court also fails. The expert does not want to. And the judges won't let him. Lisa HASE - like everyone else - has no chance in court. If a judge doesn't want to, they don't want to. And they can enforce it: they don't want to. This is because Section 286 of the Code of Civil Procedure states that the judge alone is responsible for providing evidence ; the keyword here is "free presentation of evidence". And he alone - legally omnipotent - decides. Rule of law here, rule of law there. That's it!

After four years since her first claim for damages against the university clinic and three years since she has the five patient files of her dentists at the "joint practice ", and her toothache malaise has improved, she decides to take legal action against dentist no. 12 as well. Despite all the adverse circumstances, she has read enough specialist literature to understand what went wrong and why.

And, of course, she also sees the conflict of interest that her judges at Göttingen District Court have because they have to deal with dentist no. 12, who is a 'bigwig' in the Göttingen dentistry trade. Which is probably why the judges had tried to simply eliminate her legally. A (first) "application for bias " against their judges came to nothing. As is so common with almost 100% of all bias motions. It is a legal instrument idealized by the legislator that hardly ever works. More on this later.

What Lisa HASE has to learn, however, is what the President of the Higher Regional Court of Braunschweig, in whose chamber her complaint against the rejection of her (first) application for recusal at Göttingen Regional Court landed, tells her: that "neither procedural violations nor other legal errors by a judge in themselves constitute grounds for recusal" of a judge.

What the President of the Higher Regional Court has put down on paper is not his private opinion. It corresponds to German legal ideology and embodies the current "prevailing opinion ". In other words, the practice.

Imagine a car salesman messes up and sells a customer a car that does not correspond to what the buyer ordered and trusted in almost all respects. If he discovers the mistake, he can return the car and change the seller or the store. Not so in the German legal system. Judges are practically exempt from all mistakes, acquitted in advance, so to speak. And that gives them power, which in legal ideological German is called "judicial independence ". Lisa HASE will experience this many times over.

Public prosecutor's office: criminal charges for forgery of documents

Because in the 3rd year of the second and 7th year of the first action for damages before the Göttingen Regional Court nothing has happened in terms of gathering evidence, except that she was able to avoid being labeled 'mentally disturbed ' by the court, Lisa HASE files a criminal complaint against dentist no. 12 on suspicion of forgery of documents (§ 267 StGB ), specifically: manipulation of her patient file (n).

The responsible OStA is quickly through with it. After two and a half months, he closed the case. He did not interview any witnesses . Nor did he commission a graphologist to check the uniformity of the handwriting. Not to mention a search of the practice to secure the original(s). He does not respond to the concrete indications or clues that Lisa HASE gave him. For example, the fact that notes do not match the data on her x-rays, or that dentist no. 12 has billed the insurance company for a service that is entered in the documentation of a colleague, etc.

Apparently, the OStA does not realize or does not want to admit (for whatever reason) that such contradictions constitute weighty evidence. Because if you lie, several times and to different people, you have to be careful. You need an excellent memory in which you can store a) who you told b) what c) when. For this reason, suspects are questioned several times when they are questioned by the CID. The detectives are just waiting for the suspect to contradict himself. The same applies to the manipulation of files. Here, too, you have to be extremely careful not to give yourself away with even the tiniest detail. But the senior public prosecutor doesn't go into that.

However, he addresses the fact that dentist no. 12 had already "vigorously contradicted" the allegations in the civil proceedings. And he is of the opinion that "possible contradictions between the entries in various patient files do not necessarily mean that facts were deliberately misrepresented here at the time." As evidence, he cites allegations from a pleading: a pleading from the lawyer of dentist no. 12.

Moreover, he is of the opinion "that the question of whether a document is not genuine does not depend on whether the content is consistent, but solely on whether the document originates from the person who is the issuer of the document." However, the senior public prosecutor does not even address the fact that a change in the content of a document, which is intended to give it a different "direction of proof ", also turns a "genuine" document into a "false" document. If he had looked this up in a standard commentary, such as that of former BGH -Judge Thomas FISCHER , he could have read the keyword "medical file" under text number 19a and found a relevant OLG ruling there: a subsequent alteration of data is a manipulation and turns a "genuine" document into a "false" document. It is therefore "forgery of documents ".

The OStA closes the investigation: "for lack of sufficient suspicion". We do not need to emphasize that a complaint to the Public Prosecutor General's Office is rejected on similarly meagre grounds.

Public prosecutors are often overworked, everyone knows that. And it is understandable from their point of view that they want to get files off the table quickly. But when the rule of law starts to erode because of this, it becomes critical and is no longer acceptable. If public prosecutors don't notice this, they are out of place. If they notice it but don't do anything about it, the same applies. Whether they waste their working time dealing with minor and petty crimes or concentrate on cases that endanger the faith in the rule of law of those affected and thus social cohesion is something that an authority must organize itself. The fact is that this is clearly not happening to a sufficient extent.

And as long as there is no movement, it is of no use to those affected. When we come back to the subject of the public prosecutor's office in Chapter 12, we provide information on what can be done in such cases if - in fact - nothing can be done.

New judicial strategy: expert number 3

Lisa HASE is therefore not a single step further. In the 8th year of the first action for damages and in the 4th year of the second, there are 2 expert reports and 5 supplementary reports from two experts, but no photos of evidence, which cannot be found. There are also several patient files in which many entries are disputed. However, the judges do not want to take evidence on this for the time being, i.e. they do not want to clarify what is correct and what is incorrect in the patient files. Nor do they want to hear witnesses . At least not so quickly. They make themselves comfortable. Instead, they appoint another expert from Ulm, number 3, who is now to assess the treatment errors complained of by Lisa HASE - as they appear from the existing patient documentation.

'As they result from the available files' means: The assessor should choose for himself what he wants to use for his assessment. Whether he trusts that the patient files are a "genuine document " or manipulated is up to him.

This is not compatible with the law, specifically the Code of Civil Procedure. § Section 404a (3) of the ZPO stipulates that "in the case of disputed facts", the court determines "which facts the expert should base the expert opinion on." This is what the law says. No reason for the Göttingen district judges of the 9th civil chamber for "medical liability cases n" to adhere to this. They simply ignore it. Judges act "independently", they can do what they want, nobody dares to criticize or even discipline them if they violate the law . This is precisely what gives judges legal omnipotence. As in this case.

"Expert opinion on an incomplete factual basis "

If judges require the assistance of experts with regard to the assessment of facts that they are unable to assess themselves, they must specify to the expert exactly which factual basis he should start from: the so-called connecting facts. If these are disputed, the judges must first clarify the disputed facts in the evidentiary proceedings in accordance with Section 404a (3) of the Code of Civil Procedure before they leave the "connecting facts" to an expert for assessment. Only then can the expert know which facts to examine or assess under a specific question set by the court. In the specific case of Lisa HASE , exactly the opposite happens. The expert can/should/must now decide for himself.

What this means was published by Dr. Pia RUMLER-DETZEL , former judge at the Higher Regional Court of Cologne - for many years Chairwoman of the Expert Commission for Medical Malpractice at the North Rhine Medical Association - in the 1999 specialist journal "Versicherungsrecht" (Insurance Law), 28th edition, p. 1210. Under the heading "Requirements for a medical expert opinion from the perspective of the civil courts", she writes this:

"An expert opinion on an incomplete factual basis , in which missing parts of the facts are perhaps replaced by assumptions, is not only lacking in persuasive power. It often destroys the possibility of clarifying the case for good, because it is usually almost impossible to eliminate these 'bridges of assumption ' in court proceedings and return to the 'assumption'."

Motion for recusal

Lisa HASE takes this high-handed and self-righteous behavior of the judges, as well as the foreseeable impossibility of clarifying the question of whether or not her submitted patient file (n) has been tampered with, as an opportunity to file a new application for recusal against the current judges. Naturally, this is rejected. Lisa HASE then files an official complaint against the judges violating the law . It ends (naturally) like the Hornberg Shooting. The judges argue that what the legislator has come up with is "impractical and hardly expedient". And that they would therefore proceed differently. However, they have not published this anywhere in order to discuss it with legal experts. But judges operate in a quasi-legal vacuum.

Lisa HASE's appeal against the rejection of her application for recusal is also rejected. The President of the Higher Regional Court, who had previously instructed Lisa HASE that "neither procedural violations nor other legal errors of a judge in themselves constitute grounds for recusal", argues similarly now: "Due to the constitutionally protected judicial independence (Article 97 of the Basic Law), I am prohibited from intervening in judicial factual and procedural decisions by means of service supervisory measures and thereby influencing ongoing judicial proceedings or decisions that have already been issued. According to the case law of the Federal Service Court, a judge may not be accused of misapplying the law or procedural rules." Period, the end. Rule of law here, rule of law there.

Lisa HASE is not faring much differently with her petition to the Lower Saxony state parliament in Hanover. She asks the members of the state parliament to ensure the "functioning administration of justice ". Because the composition of the 9th Civil Chamber has changed in the meantime - a common procedure in which sitting judges are normally rotated every three years - she also files an application for recusal against the new judges and the new chairman of the chamber, Judge David KÜTTLER . And (of course) it is the same as all the others: rejected.

And once again, Lisa HASE lodges an appeal with the Braunschweig Higher Regional Court. And again, the president speaks up. Everything that the judges had commissioned was correct, he said, as it was only a "preliminary opinion "!

A "preliminary expert opinion ". This is also how the regional judges see it, as they have now given expert number 3 a supplementary mandate to examine - in addition to the alleged treatment errors - "the extent to which those documented in the various documents as a whole are comprehensible and consistent from a medical point of view or the extent to which inconsistencies or contradictions arise in this regard." The expert commented that although this was "counterproductive", it was "in principle feasible". However, a plausibility check as part of an "overall view" would require a "complete reconstruction of the entire course of treatment, differentiated according to practitioners, treatment times and treatment locations". And that would take time and incur costs.

The new presiding judge David KÜTTLER : He should not worry about it: "All parties involved must accept that you are entitled to remuneration in accordance with the actual, presumably considerable effort involved." The expert responded: He would just get started and when the agreed 100 hours, i.e. 14,000 euros, had been used up, we would see what happens next.

Lisa HASE does not agree, because if she is unlucky, she will have paid 14,000 euros for a half-finished or quarter-finished report . In any case, for a worthless appraisal. After all, how can the expert be able to make a correct assessment if one of the most important questions has not been clarified? Namely the authenticity of the patient documentation(s)?

She begins to understand what is being played here. Or should be played: After the judges failed to throw her out of the race by checking her "capacity to stand trial ", the judges are now trying a different approach: delaying her trial and doing so with worthless expert opinions . The presiding judge has decided that after completion of the "preliminary expert opinion" and insofar as "the existence of errors can be assumed, one or more expert opinions on the extent of the consequences of the damage and their (co-)causation by the treatment errors will have to be obtained". Lisa HASE knows that this will take time, time, time.

First evidence date

And so it happens. After 2,700 days, on June 7, 2016, the 12th (in words: twelve!) year since the start of the first trial and the 8th year of the second, the judge schedules a (first) witness hearing. It is not about the authenticity of the patient file (n). The judge wants to clarify whether dentist no. 12's practice was or is a "group practice " or a "group practice". In the first case, dentist no. 12 would have to be liable as the boss for the mistakes of his employees or colleagues, in the other case not.

The supreme court rulings by other higher regional courts and the Federal Court of Justice on the subject of "joint practice " are of little interest to the regional judges in Göttingen. This is because standards have long since been established:

A name of the practice with the addition "and colleagues"

a shared e-mail address of several doctors in one practice

a single patient number if one patient is treated by several patients

a joint practice stamp and a joint reception desk

the billing of privately invoiced medical services by colleagues who have not provided them at all, and

Joint billing of health insurance benefits

are therefore indications of a "group practice ". Or for a practice that creates such a "legal appearance " (as it is called in legalese) for patients. Or must inevitably do so: for a (sham) group practice . There is also a sign on the front door of the large practice of dentist no. 12: "Gemeinschaftspraxis" (group practice) can be read there together with other dentist names.

In a first so-called reference decision from 2012 by the judges, in which expert number 3 was commissioned, and seven years after the dental practice of number 12 had submitted a total of five handwritten patient documentations, the judges still stated that the evidence submitted by HASE - including a joint practice sign, a joint e-mail address, a joint practice stamp and partial joint billing - spoke in favor of a "joint practice ".

However, a "reference" decision always implies a hint. Specifically: a signal to both parties that they must provide further evidence if the court is to come to a different conclusion. Lisa HASE has submitted the relevant evidence. Now it's the turn of dentist no. 12, who also acts as an expert witness in court. In other words, a quasi-colleague of the judges.

Dentist no. 12 let the court know this in advance: "all dentists in the joint practice were/are self-employed, have their own employees, their own administrative assistants."

When dentist no. 13 is questioned about this, she states: "I didn't employ staff myself. We shared the staff."

Furthermore, no. 12 claimed that he had run a joint practice with another dentist "for a certain period of time", but had ended this collaboration.

However, as Lisa HASE has researched via her health insurance company, this is not true. In fact, No. 12 ran and/or runs a "joint practice" with No. 13 and 21. Then not again, then again, but now No. 12 only with No. 21.

All three were practitioners of Lisa HASE.

The judge wants to know why the patient's name HASE is listed under a single patient number in all index cards and invoices. Dentist no. 12 cannot explain this, he sees himself "as a practitioner, not an accountant!"

And whether he could remember the names of the helpers, who was in his team? "I can't remember!"

No. 12 does not mention that his own sister has been working in his administration for years (who could also be questioned). Presumably he can't remember this at the moment either. Obviously a "blackout" - as we know from other cases. And accept the judge if it seems appropriate. So: as the case may be.

Originally, the presiding judge had asked whether there had been joint patient documentation. He then changed this to the question of whether "joint practice " - yes or no? And he had forbidden Lisa HASE from asking questions about the contradictions in the patient files. For example, in such a way that she could have jogged "No. 12's" memory that his real-life sister could provide information.

But the great presiding judge David KÜTTLER was not interested in this and instead scheduled another hearing six months later to discuss whether there was a joint patient file or not. Because Judge KÜTTLER now assumes that - despite all the evidence - there was no "joint practice ", the result of the second witness hearing is - basically - already clear: no "joint practice", i.e. no joint patient documentation.

This is exactly how the second evidence session works:

Dentist no. 15, who is also one of the dentists sued by Lisa HASE , denies that there was a "joint practice ", that the cooperation with the others was "a kind of consultation", and that each of them kept their own documentation, and that what she submitted to the court was not a "subsequent transcript, rewrite or the like". And that she had "said in response to the plaintiff's request for access to the files" that "that would not be possible now" because No. 12 "did not want that, this is the first time I have heard that I am supposed to have said this."

She has probably also forgotten that it was different, or is relying on the fact that Judge KÜTTLER is also well-disposed towards her. Lisa HASE had - wisely - taken a witness with her at the time who would also confirm this in court. Or had already done so in writing. A statement that is available to Judge KÜTTLER. But he obviously has no interest in that. Because he does not point out this contradiction to no. 15.

The presentation of evidence is the sole responsibility of the judges in the constitutional state of Germany, who in their omnipotence decide, firstly, what they want to hear and what not, and secondly, what is ultimately entered into the court record and what is not; in other words, what is subsequently brought to the attention of the possibly then replaced sitting judges if a verdict is reached. Or what does not. The fact that Article 103 paragraph 1 of the Basic Law states that everyone is - in fact - "entitled to a fair hearing " is quite nice. But nothing more. In case of doubt - or as a rule - those affected have none of this. And the chances of getting justice for this violation of fundamental rights before the highest German court, the Federal Constitutional Court in Karlsruhe, tend towards zero. Specifically in figures for 2022: 1.079%. Rounded 1 percent. (State) judges therefore do not need to worry about receiving a 'slap on the wrist' in any way 'from above' or being reprimanded in any way. The independence of judges is boundless in this country. And then quickly turns into arbitrariness .

And so it is not too surprising that after these two witness hearings by Judge David KÜTTLER the high court came to a different, now contradictory assessment in a new reference order , namely "that the plaintiff has not proven after the taking of evidence that the defendant [meant: No. 12] ran a joint practice (= joint practice ) with the witnesses" No. 13 and No. 15 "in the years 2004 and 2005." In short: neither a joint practice nor a sham joint practice!

Lisa HASE s proceedings are now in the 13th year of the first and 9th year of the second action for damages in 2017 . The strategy of the judges of the 9th Chamber at Göttingen Regional Court is working: the two proceedings, which are being conducted by the judges as if they were a single set of proceedings, are dragging on. And cost not only money, time, health and nerves, but also precious years of Lisa HASE's life.

After strategy no. 1 ("Litigability ") and no. 2 (expert no. 3 and delay of proceedings ) now strategy no. 3: subsequent limitation of the expert's assignment

After the Göttingen Regional Court's first attempt to eliminate Lisa HASE from the proceedings as a mentally disturbed troublemaker did not work, and the second strategy of delaying the trial by questioning witnesses for the first time only after 2,700 days is proving quite successful, the judges are now igniting a further afterburner stage. They are limiting the expert witness assignment:

Because there was no "joint practice " after all, according to her change of opinion, there is now "no need to take additional evidence as to whether treatment or information errors occurred during the treatment of the plaintiff ... because the defendant [meaning: no. 12] would not be responsible for such errors in the absence of a joint liability." Nor should it be a matter of "errors due to failure to plan treatment jointly or due to failure to coordinate" between the various practitioners in the non-existent "joint practice".

As far as afterburner stage 1.

Afterburner level 2 is that expert number 3 is to assume that the treatment of Lisa HASE by number 12 ended in August 2004. In other words, what Lisa HASE remembers as her "dental disaster month", namely the following October 2004, should no longer be the subject of his expert opinion.

Very small flashback

In the "dental disaster month", Lisa HASE was first treated by No. 12, who then referred her to No. 15 (in the non-"group practice ") for further treatment, but the pain did not subside, which is why she sat in the chair again with No. 12 and was then referred to No. 13 (in the non-"group practice"). And although the pain did not subside, but became increasingly unbearable, although it was known that Lisa HASE had occlusal disorders and was also a high-risk patient, no one in the non-"group practice" (or in the "consultation" as No. 15 had described it in court) came up with the idea of carrying out a detailed diagnosis and drawing up a treatment plan. What reads comparatively harmless in this paragraph with its three sentences ultimately conceals gross treatment errors , which will not be described in detail here. But they led Lisa HASE to seek help outside the renowned dental practice in Göttingen.

And because the large dental practice in Göttingen was not a "group practice " (although the company sign gave the exact opposite legal impression ), the judges gave the expert further instructions: For example, that therefore "no additional evidence must be taken" as to "whether treatment or information errors occurred during the plaintiff's treatment, because the defendant [meaning: No. 12] is not responsible for such errors due to the lack of joint liability". Nor should it be a matter of "errors due to failure to plan treatment together or due to failure to coordinate".

"Gross malpractice " is a special feature of medical malpractice lawsuits. According to the applicable law of evidence , a plaintiff must provide evidence of what is to serve as the basis for a legal claim, regardless of whether it is an action for injunctive relief of something or damages or similar. In the case of "gross malpractice", however, which is to be determined by an expert, the doctor being sued must prove that the error did not cause any consequential damage. This is the highest case law. This results in the rare case of a reversal of the burden of proof . In case of doubt, the doctor is then liable and must pay. If an expert does not find any such error(s), for example because a court excludes this by imposing corresponding requirements or restrictions on the expert opinion, i.e. the formulation of the "connecting facts ", the plaintiff is out of luck. And has to pay for everything financially: the expert, the court costs, the fees for the lawyers on both sides. Because it is useful to know about this, there is more on this in Chapter 12.

One of these restrictions, which the 9th Chamber for Medical Liability Cases at Göttingen Regional Court has now made after all, namely retrospectively to expert number 3, is now decisive: The treatment of Lisa HASE by dentist number 12 came to an end in August 2004! The "dental catastrophe month" is therefore excluded. The expert cannot/may not find any errors on the part of No. 12.

The fact that Lisa HASE submitted a certificate to the court via her lawyer in which dentist no. 12 attests in writing that she is "undergoing treatment" with him does not bother the 9th Chamber at Göttingen Regional Court in the slightest. Judges are omnipotent as far as the procedure of trials is concerned due to their unassailability and resistance to criticism and can therefore exercise arbitrariness as they please. As in this case: the "medical certificate" is dated September 2004.

"Judicial independence ": Negation of this evidence

The judges simply do not take note of the evidence. This unmistakable indication that everything was a little different from what they claim in their orders to the expert simply goes right past them - there is no other way to say or write it. The rule of law in Germany.

Lisa HASE is actually stunned. But has now understood that "justice and the law ", as stipulated by the German Basic Law in Article 20 , paragraph 3, is something different from what is happening to her at Göttingen District Court. And that her case is possibly not an exception, but the rule. She does not want to accept this. She is once again filing a motion against the judges, who clearly want to make her evidence impossible - in favor of her former dentist no. 12. It is - in 2017 - the fifth motion of this kind since 2004.

"Concerns of bias "

§ Section 42 of the Code of Civil Procedure stipulates that a judge may be "disqualified from acting as a judge" by any of the parties in dispute on the grounds of "apprehension of bias ". This legal text already provides clear indications as to the interpretation of what constitutes "concern": Namely, "if there is a reason that is suitable to justify mistrust of the impartiality of a judge."

This means that it does not matter whether a judge is biased or not, which is difficult to prove from the outside. Nor does it matter what he himself thinks or says or writes about it, e.g. in his "official statement " in accordance with Section 44 (3). What matters is the potential "concern", i.e. exclusively the circumstance of whether, for example, someone completely different, specifically: whether another reasonable and objective party in the same situation would have reason to question "the impartiality of the judge".

That is the legal situation. Specifically: the case law of the highest court. It is hardly ever applied in day-to-day dealings with "law and order ". And therefore not in Lisa HASE .

Why this is the case is explained by someone who should know: a former judge at the Higher Regional Court of Cologne who worked as a lawyer after his retirement, Dr. Egon SCHNEIDER . He had always refrained from chairing an OLG senate because he feared that such a prominent position would make it more difficult for him to criticize the judicial process, which was always very important to him. One of his most important book publications: "Befangenheitsablehnung im Zivilprozess", the standard work that everyone must know, because it describes in detail what is important. And that "official statements" that recused judges must make in accordance with Section 44 ZPO , such as "I don't feel biased!" are absolute nonsense, but daily practice. SCHNEIDER's explanation for the widespread lack of prospects: "camaraderie ". In other words: "One crow does not peck the eyes out of another ."

Because this judicial dysfunction is a very significant shortcoming of the German constitutional state, because it was actually intended to ensure compliance with the law by the courts, legal certainty for citizens and fairness in proceedings, we pass on the most important tips from Erich SCHNEIDER in a separate chapter: Chapter 12.

Unsurprisingly, this "concern" regarding the impartiality of their "statutory judges" of the 9th Civil Chamber is also dismissed by their so-called chamber representatives (1st Chamber). Among them: the President of the Regional Court, Gabriele IMMEN , who in her function is responsible for the judicial culture in her court. In her rejection, she argued that her colleagues had stated "that the plaintiff's pleadings ... give no reason to change the opinions expressed in the decision." Meaning: The reference to the obvious contradiction between the alleged end of treatment in August and the "medical certificate" one month later that the treatment has not ended does not give the "statutory judges" any reason to "reconsider" their specification for the expert. And then the presiding judge goes on to fabulate that her colleagues had "