Nazi comparison: An ex-KSA doctor is standing before the higher court for defamation against neurosurgeon Javier Fandino
Four years ago, a former senior doctor at the Aarau Cantonal Hospital pulled out a Nazi picture. Hanspeter Killer wanted to point out grievances under star surgeon Javier Fandino. Now he has to answer before the higher court.
The longer an online discussion lasts, the more likely a Nazi comparison will be. This is what the so-called Godwin's Law says, an art-ironic natural law from internet culture. In a way, it also came true on a Thursday in August 2020.
At that time, Hanspeter Killer was standing in a meeting room in the Aarau Cantonal Hospital and clicking through a Powerpoint presentation. Then the former cadre doctor showed the three administrators in front of him the following heavy slide number twelve: a black and white photograph in which two men in uniform bend over a man with a blank stare. They are Nazi doctors from the Dachau concentration camp. The man in front of them is one of countless Jewish prisoners on whom they studied the effects of hypothermia on the human body.
The controversial image in the presentation to the KSA Board of Directors: Two Nazi doctors carrying out human experiments in the Dachau concentration camp.
It was not a private lecture in medical history that Killer and Andreas Huber, also a former senior doctor at the KSA, held in this meeting room four years ago. On the contrary: The two retired doctors made serious allegations against a former colleague: Javier Fandino, former head of neurosurgery and figurehead of the KSA.
According to allegations made by the two former senior doctors, Fandino conducted unethical research. For example, Fandino is said not to have obtained consent from all patients. At the end of August 2020, the two senior doctors submitted a supervisory report to the government council. However, many of the allegations were not confirmed in the investigation. And at the beginning of 2023, the Aargau government partially approved Fandino's complaint against the supervisory report. In the meantime, the neurosurgeon had also reported the two ex-senior doctors. The reason: the picture with the Nazi doctors.
“The picture should be an eye-catcher”
Now the two opponents are sitting before the Aargau High Court: Hanspeter Killer as the accused and Javier Fandino as the civil and criminal plaintiff. The second accused, Andreas Huber, is missing. He has since died.
Neurosurgeon Javier Fandino.
Eye surgeon Hanspeter Killer.
“The picture should be an eye-catcher to talk about the actual topic: Fandino’s unethical research,” Killer now says in front of the panel of judges. He unsuccessfully defended himself against the penalty order for defamation before the Aarau district court. Now the 73-year-old is hoping for the Supreme Court.
The retired doctor says he searched the Internet for “unethical medical experiments.” “I found this picture.” – “Did you know that it is a picture from the Nazi era?” asks the judge. “Yes, but it’s still not a comparison.” “It just illustrates unethical behavior,” says Killer. “This is followed by a slide from an operating room in the KSA with the question: ‘Would you like such experiments to be carried out on the IPS?’,” replied the judge. “Do you see that this can be used to establish a connection to the concentration camp doctors?” – “No,” replies Killer. “There is no causal connection.”
He and his lawyer argue with the Human Research Act, for example. This also arose due to medical experiments in Nazi Germany, says Killer's defense attorney. “The picture may be harsh, but Nazi research was the cause of the law.” In any case, the court absolutely had to approve the appeal and acquit his clients, said the defense attorney. He argues that there was a procedural error: the criminal complaint should never have been accepted in the first place.
Because slander is a criminal offense. This means: The offense must be reported within three months. Javier Fandino filed a complaint against his former colleagues on March 14, 2022. According to Killer's defense attorney, he had already found out about the slides through a journalist from a specialist portal in the fall. “Fandino did not file the criminal complaint in time,” the defense attorney concludes.
“It is unrealistic that my client would not have filed the complaint earlier if he already had knowledge of the film,” counters Fandino’s lawyer. The Aarau District Court also rightly came to this conclusion in its judgment. It's not about the intention behind the Nazi image, but about its effect. “What image is left to unbiased third parties?” asks the lawyer rhetorically. “The image of a person who carries out research like the concentration camp doctors. The image of a completely unethical person.”
The court finds the doctor guilty
The higher court ultimately shares this view. It confirmed the guilty verdict of the first instance and sentenced the killer to a conditional fine of 20 daily rates of 1,000 francs each. The ex-senior doctor must also pay a fine of 4,000 francs and compensation of 1,000 francs to Fandino and cover his court costs. The verdict is not yet final.
“You clearly classified the picture as a Nazi picture,” says the chief judge, addressing the killer. “Even if you wanted to point out any grievances, it was not appropriate.” Godwin's law applied once again. And has legal consequences in the real world.
