Basics
According to the repeatedly stated definition, mistrust in the impartiality of the judge is justified if the objecting party, upon full consideration of the facts known to him, has reason to believe that the judge or judges opposed to him have an attitude towards him that may influence impartiality and impartialitycan influence adversely [1]. However, practice shows that the elements of the definition that are open to broad interpretation and discretion ("reasonable assessment" / "inner attitude" / "can influence adversely") can lead to significantly different evaluation results.
Judges usually do not consider themselves biased despite incredible events and/or statements, while defense and defendants sometimes see bias where the courts of appeal cannot see any evidence of it. The problem area is strongly oriented towards cases that have already been decided. The tactical use of the instrument of rejection, as well as the rejection of the rejection, dominates on all sides. The essay is intended to shed light on substantive and tactical aspects for practitioners.
Justified rejection
When is mistrust of impartiality justified? The question of analyzing this as a defense attorney in the first few seconds of the proceedings must be evaluated in light of previously decided cases. On this basis, the case currently taking place during the hearing can be classified and evaluated in advance in the sense of an interruption request to be made immediately. The following cases of justified rejection should be known and provide an overview:
"Between you and me, don't kid yourself, the three belong where they are, for a very long time and very deeply. People like that have no place in freedom"[2].
(...) a warrant can then justify concerns about bias if the alleged risk of absconding is justified by reference to procedurally permissible behavior.
Unfounded rejection of a request to reschedule a hearing[4] or decisions under § 26a I No. 3 StPO that are not conceivable under any legal aspect[5].
Rejection of a motion to take evidence as late[6], non-granting of a legal hearing[7] and refusal of access to files when this is not conceivable from any legal aspect[8].
Statements made to the defendant, the defense attorney, the press or third parties such as, "you are the type of person who habitually commits crimes"[9].
Concealment of follow-up investigations[10] and the unauthorized restriction of the right to ask questions[11].
The coercion to testify as to the facts of the case, the coercion to make a confession and the threat of a higher penalty for the case of silence are all grounds for rejection. Also, influencing a witness not to exercise his right to refuse to give evidence[15] is a reason for rejection.
In the case of "agreement in criminal proceedings", even the attempt to "circumvent" the legal regulations is a reason for bias. Examples are: "I am not doing this as an official agreement under the German Code of Criminal Procedure. I don't want to have the restrictions in there..." or "We discussed that two years would come out, I won't log that..." Also, the failure to report on communication talks and the related "incorrect entry" in the minutes of the meeting justify the concern of bias. The secret "agreement" with a co-defendant also leads to a successful challenge[18] as does the labeling of the defense attorney as an "amok runner".[19] Overall, bias can be assumed if the judge gives the impression that he has already decided on the outcome of the evidence[20] and also if he shows his firm conviction that the testimony is untrue when questioning a witness for the defense[21]. Bias can also always be assumed if the chair refers to the legal remedy before the conclusion of the evidence (e.g. "you can present that in the legal remedy (…)"[22].
Unjustified challenge
In the following cases, a challenge was deemed unjustified: reproaches in an emphatic form[23] as well as expressions of displeasure understandable in the circumstances. 24] Nor is there any reason to object to the reference to the significance of the confession for the sentencing. The "council" to "withdraw an appeal due to a lack of prospect of success" will have to be assessed in a differentiated manner. 26] Tensions between judge and defense counsel can only justify the rejection if they are serious. 27] It is not sufficient to express a legal opinion, whether in an individual case or in writing or teaching. Incorrect or even untenable legal opinions are also unproblematic, provided that the opinion is not completely absurd or gives the appearance of arbitrariness. This list of cases could be continued at will, without reliably representing the respective current case. It is important that the defense counsel – for the sake of his client – does not from the outset dismiss the challenge for alleged bias as "worthless" or "pointless", but rather masters it as an element of the defense. This must be done against the background of the repeatedly demanded open-ended and formal main proceedings.
Strategy and counter-strategy
Rejection and refusal of rejection are to be evaluated in the context of the respective procedural situation and also in terms of procedural tactics. There are a number of possible variants for the proceedings to develop. Here are some examples:
Settlement without decision
Tactically, the cases for the defense "successful" are those that never have to be decided by a higher court. Examples from practice: Judge at the Local Court of Chemnitz in the oral proceedings: "Be careful, one way or another I'll get your client," or at the Local Court of Koblenz: "You'd be better off mounting a constructive defense. We'll show you that... you'll see what you get out of it...' or AG Koblenz: "if you file a motion for evidence, I'll put your client in custody" and an unexplained evening meeting between a judge and defense attorneys at a highway rest stop (Coblence District Court "Christoph Daum"[32]). In such clear-cut cases, the following is regularly observed: A relatively open official statement by the rejected party, who neither denies nor affirms, will not be able to remember the exact facts of the case/content of the statement (anymore). The proceedings are then suspended for 6-12 months. During this time, discussions can take place between the defense, the court and the public prosecutor's office with the aim of discontinuing the proceedings in accordance with § 153 a StPO. All parties involved have "no interest" in continuing the proceedings. The defense can "live" with § 153a StPO and the court has no interest in certain statements / actions reaching the Higher Regional Court or the Federal Court of Justice. However, the defense has to expect the following "counter-strategies" and take them into account in their considerations:
Counter-strategies – legal
Rejection due to the time limit
A rejection must be made "immediately" in accordance with § 25 II No. 2 StPO. The defendant is to be granted a period of reflection; in particular, he may consult with his defense counsel.If the defense counsel / the defendant in the main proceedings is not interrupted without culpable hesitation and / or makes a corresponding request and does not have the application for a negative decision recorded, the court has the option of directly rejecting the application as "belated". In this case, the rejected judge can even decide for himself, which is tempting. The following procedure is dangerous: Defense counsel: "I have to examine a motion to be filed immediately. Please interrupt for 5 minutes." Judge: "Wait until after the lunch break." Not making a request for a protocol now would be fatal, because a request made after the lunch break would be "too late". The defense counsel must firmly oppose any refusal to make a note of this. The refusal to make a note of this must also result in a "new" motion to dismiss.
Counter-strategies – apocryphal
As a rule, rejections lead to considerable emotionalization, which is actually incomprehensible from a defense lawyer's point of view. Why should a judge who makes statements during the main hearing, such as, "To the court, you are the type of habitual criminal," be "offended" because of a subsequent rejection? Nevertheless, it can be perceived that the person rejected in each case takes it personally. Such feelings automatically lead to particular reactions, which, since they are not regulated by law, can be called apocryphal counter-strategies.
Protective vocation
In the case of district court decisions, a more or less professional proximity between the presiding judge and the public prosecutor's office can often be observed. Although the court complies 100% with the public prosecutor's application, the public prosecutor's office nevertheless often appeals. This approach, known as a "protective appeal", leads to the rejection being ignored, since a review of the judgment does not take place from the point of view of the appeal. If the negative decision on the application is combined with the "protective appeal" by means of "expiration" or "delay in proceedings", the defense's options for action are practically limited to zero. In particularly blatant cases, one can think of a "request" (disciplinary complaint) to the president of the competent regional court, which is in charge of the service, or to the competent senior public prosecutor. This does not help in the present case, but it will help in dealing with future cases before the same judge or public prosecutor.
Time delay
Defenses before local courts (both in criminal and in summary proceedings) are subject to special legal requirements. In particular, district court proceedings often place a high value on adhering to the daily schedule of meetings. This sometimes allows a full 10 minutes for a fine proceedings. Delays to the schedule – especially due to refusals – can result in the following: Appointment at 10:00 a.m. Judge's refusal: 10.20. Official explanation at 15.00 and continuation of the main hearing at 15.30. In some cases, the approach seems to be planned in such a way that it appears that the court wants to "return" the delay. The defense must take such "problem terminations" into account and check for time overlaps, report them and object to deadlines that cannot be met, if necessary with a further challenge for bias.
Official statements by the rejected party
Official statements are usually rather poor in content, brief and incomplete. Phrases such as, "no memory (…)", "is not my usual choice of words" as well as not discussing large parts of the rejection request are to be described as usual. It is generally considered apocryphal not to dispute a presentation of the challenge as a "concession". However, official and written confirmation of the facts by the challenged judge is rarely to be expected. The incorrect official statement by the challenged judge in turn constitutes a new reason for bias here. When an official statement is incorrect due to "omission" will depend on the individual case.
Form
In order to correctly and completely "work through" all the contents to be listed and substantiated, and thus leave the challenged judge as little leeway as possible for "creative" challenge strategies, a fundamental preparation for "rejection topics is absolutely essential. It also makes sense to develop a standard form for a challenge. The authors propose the following form:
District Court / Regional Court
The undersigned rejects on behalf of and in the name of the defendant/person concerned
the judge
the lay assessor
due to concerns of bias.
I. Facts of the case:
□ Statement of the facts attached
II. Prima facie case for the facts of the case
Official statement by the challenged judge/lay judge
□ written statements attached
□ written statement could not be obtained
□ legal assurance of the signatory
III. Prima facie evidence pursuant to section 25 of the Code of Criminal Procedure
□ Description of the chronological sequence attached
official statement by the challenged judge
□ Affidavit of the signatory
IV. Reasons for the challenge
The actions of the judge are unobjective, legally flawed and inappropriate. The defendant's trust in the impartiality of the judge has been destroyed.
A judge's behavior can give rise to concerns about bias if he gives rise to concerns that he is not approaching the matter impartially. The way the proceedings are conducted can also justify mistrust if they are legally flawed and unobjective. It is not necessary that the judge/juror is actually biased or does not consider himself biased. The only thing that matters is whether, from the point of view of the person making the objection, there are sufficient objective reasons that, from the point of view of a calm and rational party, give cause to doubt the impartiality of the judge/lay judge.
□ Additional information attached
V. Applications
We further request that
to make the official statement of the challenged judge/lay judge accessible to us before a decision is made regarding the challenge, to give my client the opportunity to comment on this. After the challenge has been made, to suspend the proceedings and to allow the defense
access to the files
to
Lawyer
Result:
Experience in criminal practice shows that the motion to dismiss is precisely not a means of the often-criticized "conflict defense".[34]/a> It is rather one of the "tools of the trade" that the defense attorney and public prosecutor must master.
[1] BVerfGE 32, 288; Meyer-Goßner, 55th ed., 2012, § 24 Rd. 8 with further references.
[2] BGH in: StV 15, 4.
[3] BGH in: StV 15, 5.
[4] OLG Cologne StV 91, 292.
[5] Schmuck NJOZ 12, 2153.
[6] Berlin District Court StV 93, 8.
[7] Cologne District Court StV 87, 381.
[8] Hanau District Court NStZ 04, 398.
[9] BGH MDR 61, 432.
[10] BGH StV 95, 396.
[11] BGH StV 85,2.
[12] BGH NJW 59, 55; OLG Koblenz zfs 2004, 186.
[13] BGH NJW 82, 1712.
[14] OLG Stuttgart NStZ-RR 05. 349.
[15] BGHSt 1, 34.
[16] Schmuck SVR 2012,1.
[17] Fromm NJOZ 2015,1.
[18] BGH NJW 96, 1355.
[19] OLG Koblenz zfs 2004, 186.
[20] BGH NStZ-RR 04, 208.
[21] BGH NJW 84, 1907.
[22] District Court (Amtsgericht) Frankfurt a.M. zfs 2004, 187.
[23] BGH MDR 57, 16.
[24] BGH NStZ 2000, 325.
[25] Meyer-Goßner, stop, 55th edition, 2012, Section 24, para. 18 with further references.
[26] OLG Düsseldorf Strafo 99, 347; a.A.: KG StV 88, 98; OLG Hamm StV 98, 64.
[27] BGH MDR 71, 897; OLG Braunschweig Strafo 97, 76.
[28] BVerfGE 4, 143.
[29] Meyer-Goßner, StPO 55th edition, 2012, Section 24, para. 14 with further references; Burhoff, Handbuch für die strafrechtliche Hauptverhandlung, 7th edition, 2013, para. 65 with further references.
[30] BGH NJW 84, 1907.
[31] BayObLG wistra 02, 196.
[32] Regional Court Koblenz - 2090 JS 35690/00 - 1 KLS.
[33] BGH, Beschl. V. 20.10.78 – 2 StR 356/78.
[34] Münchhalffen Strafo 2007, 91.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.