Judicial disqualification

A challenging petition, also called motion for bias, in German law is an application through which one can make the concern submits to a judicial proceeding, an appointee to the decision judge was biased. May be rejected only individual judges, never the Court as a whole.

Legal foundations

Application for rejection against judges are regulated in § 42 ZPO ( it referring to § 6 FamFG ), § 24 Code of Criminal Procedure. Reason for the option to reject a judge for bias, is to be derived from the rule of law of the Basic Law principle of a fair trial (English fair trial) and the right to a lawful judge under Article 101 paragraph 1 sentence 2 of the Basic Law. To a fair trial is a mandatory element that this will be decided by a neutral and independent judge. Therefore, at a party to the proceedings must have the opportunity to work out that only judges who face him impartially, are handling the case.

Apprehension of bias

Apprehension of bias must be assumed if circumstances exist that can rise to justifiable doubts as to the impartiality or independence of the judge. Suitable to justify distrust of the impartiality of the judge officiate, are objective reasons that can arouse from the standpoint of rejections from rationally, the fear, the judge is in substance not against unbiased and impartial. Then, if the application is rejected From its side, the judge to be biased, it comes as little as to whether the judge considers itself to be biased or whether it is objectively biased. Because rejection reason is contrary to the inaccurate everyday language is not the bias, but the apprehension of bias. Therefore, neither a challenging petition against a judge still contains a decision with which the challenging petition was declared justified necessarily a reproach against the rejected judges (about the content that he had made ​​a mistake ).

Are in the process of the rejection of a judge of the factual circumstances conclusively demonstrated for bias, but unaufklärbar, the appearance of an apprehension of bias talking. By contrast, for a decision " benefit of the doubt of the rejecters " no room when it's all about the subjective evaluation objectively established facts ..

Individual cases of reasonable rejection

Apprehension of bias can be assumed, usually in close personal, particular friendship, relationship of the judge to a party; at safeguarding of interests of the judge for a party, for example through provision of advice or recommendations; in unequal treatment of the parties, as when the requests of a party are measured by a different scale than the requests of the other party; with irrelevant, derogatory, offensive or derisive remarks of the judge on a party; with remarks of the judge, suggesting bias ( for example, if the judge has already determined before carried out evidence on a particular outcome ); at arbitrary deprivation of a party; with coarse, especially heaping, procedural errors; of inaction and delaying a decision.

The challenging petition under § 42 ZPO, § 24 Code of Criminal Procedure can also be based on the fact that a judge is precluded from exercising his office by operation of law. Cases of exclusion of the exercise of judicial office are governed by 22 Code of Criminal Procedure § 41 ZPO, §. Among other things, a judge may not act in their own terms, in terms of his or her spouse or in terms of closer relatives. A judge, the law of force is excluded from the exercise of the judicial office, may in the procedure also not involved, if no rejection request is made against him.

Individual cases of unjustified rejection

No apprehension of bias due to the rule if the judge was involved in a provided by the respective Rules of Procedure manner already with the matter and has issued decisions, notification under § granted 139 ZPO about in civil proceedings or a part or has issued an interlocutory judgment or was involved in criminal proceedings in the decision on the commencement of the trial, the continuance of the detention or the provisional withdrawal of the license; also in contributing to earlier methods of the same party no apprehension of bias will be to adopt a rule. Next usually no apprehension of bias will be assumed if the Judge of the same political party or the same religious community sounded like the enemies of the rejecters. No apprehension of bias also exists with preliminary expressions of opinion of the judge to litigation, particularly in cases of expression of legal opinions, in exercise of judicial care and duty to warn ( the court gives to support that the applications are formulated correctly) and are in the process violations and erroneous decisions as long as they do not occur frequently or are arbitrary. Even the mere Duzen a party founded not in every case the suspicion of partiality. The private conduct of a party (charge or disciplinary complaint against the judge, insult the judge ) never justifies the suspicion of partiality of the judge, otherwise parties may at its own discretion to exclude unwelcome judges from the process.

Method

The reason for refusal which it relies. This does not happen or is the reason put forward is not likely to create a successful rejection of application, the rejection request of the Court, composed of Judge rejected as inadmissible. A motion for bias is therefore without further substantive examination already unlawful when it is understood to be quite abusive. This is especially the case if the challenging petition process purposes other than be prosecuted or if the application has grossly unprofessional and offensive content without immediate payment in kind.

Otherwise, the judge rejected on the reason for rejection has to express business to the utterance is to give the parties a fair hearing. After the court decides without the participation of the judge rejected by decision. The resolution with which the challenging petition is declared justified, is not subject to appeal. If the rejection request is rejected, the decision may be challenged by immediate appeal. In Criminal Procedure, a decision in which the challenging petition against a discerning judge (ie, a rejection of petition against a party to the trial judge) is rejected only be appealed together with the judgment.

The challenged judge may only urgent steps to do so ( § 47 para 1 CCP, § 29 para 1 CCP ) between application and rejection decision. In civil proceedings, the judge may, which is rejected during the transaction, continue the appointment, if otherwise an adjournment would be necessary; is the rejection of declared well founded, the grade boundaries after the rejection of the application proceedings ( § 47 paragraph 2 ZPO) shall be repeated. In Criminal Procedure, a trial can take as long be continued until a decision on the refusal without delay the trial is possible, but no later than the beginning of the next session day or until the start of the final presentations (§ 29 Section 2 Sentence 1 Code of Criminal Procedure ). In Criminal Procedure, if the rejection is declared justified to repeat the part of the trial, which is after the rejection of application, if the trial does not have to be exposed anyway (§ 29 paragraph 2 sentence 2 Code of Criminal Procedure ).

If a relationship before, which could justify a refusal, or if made ​​of other inducement doubt about whether a judge is prohibited by applicable law, the judge concerned must in accordance with § 48 ZPO, § 30 Code of Criminal Procedure Show this what also to a decision of the Court fare has ( so-called self-rejection, where the term is misleading: neither the judge has a private right of refusal, yet it depends on his view of ).

Legal consequences of successful rejection

The successful refusal has the consequence that the challenged judge in the proceeding no longer allowed to participate. In the Code of Criminal successful rejection usually means that exposed a trial, that is, must be stopped and restarted. This applies only not when supplementing judges were consulted and a substitute Judges can take the place of the judge rejected successfully.

Rejection of other proceedings

The provisions of the rejection suspected of partiality apply mutatis mutandis to the nurse (§ 10 RpflG ), the clerk of the office ( § 49 ZPO, § 31 Code of Criminal Procedure ), the patent examiner ( § 27 para 6 of the Patent Law ) and the expert ( § 406 Code of Civil Procedure, Code of Criminal Procedure § 74 ). In practice, important is only the rejection of the expert. A rejection of witnesses because of possible bias is not possible in the German procedural law.

Bias in other jurisdictions and territories

Bias guesses can also be asserted against employees of authorities. So they may not be involved in any form ( affected, related or employed by person affected ) § 20 Administrative Procedures Act. Even if a party claims that there is a reason for distrust of authority, he shall report this in accordance with the Administrative Procedure Act § 21.

To avoid bias due to preliminary information, it is common in the legal systems of some countries to choose for trial jurors who have no prior information obtained by, for example, media reports on the case in question.