Can the HR department actually show bias towards the employees?

The BGH explains again what bias actually means ...

by Carsten Krumm, published on May 23, 2012

In the last few months the BGH has had to deal with staffing issues, etc. again and again. Now in this context it was about the bias of the Senate members of the 2nd Senate. The BGH wrote a nice summary of the bias, which could be used as a text module:

Because of concerns about bias, a refusal occurs if a reason is put forward that is suitable to justify mistrust of the impartiality of a judge (Section 24 (2) of the Code of Criminal Procedure). The provision is a simple legal expression of the constitutional principles of the legal judge (Art. 101.1 sentence 2 GG) and the independence of the courts (Art. 97.1 GG), which guarantee that the legal seeker in the individual case stands by a judge who is independent and impartial and who guarantees neutrality and distance from those involved in the proceedings (see BVerfG 2 BvR 958/06 of December 27, 2006 = NJW 2007, 1670 mwN; 2 BvR 115/95 of 19. August 1996 = NJW 1996, 3333). Mistrust in the impartiality of the judge is justified if a party involved in the proceedings has reason to doubt the impartiality of the judge, given reasonable assessment of all circumstances (BVerfG NJW 1995, 1277; BVerfGE 88, 1, 4; BGH, decision of April 27, 1972 - 4 StR 149/72, BGHSt 24, 336, 338; Meyer-Goßner StPO 54th edition 2011 § 24 marginal number 8 with further references). Whether or not a judge's rejection of a judge because of concerns about bias takes place according to Section 24 (2) of the Code of Criminal Procedure is always assessed with regard to the specific procedure; if there is a reference to the specific subject matter of the proceedings, there can be no question of a general rejection that spans all proceedings, which is not provided for by law (BVerfG 2 BvR 115/95 of August 19, 1996 = NJW 1996, 3333).

BGH, decision of 9 May 2012 - 2 StR 25/12

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Holger comments on the permanent link

It is well known that decisions on requests for bias usually consist of text modules that confirm to the rejecting party that on reasonable examination (that is to say: from the sensible internal perspective of a judge) there can be no concern of bias.

Requests for bias should therefore not be made in the hope that they could lead to a replacement of a judge or to success in terms of appeal law. That is more than rarely the case. They therefore rather serve to encourage the judge to think about whether he is leaving a sufficiently impartial and impartial impression. It is usually sufficient to announce an "urgent application", to leave the conference room with the client for 5 minutes, to come back in and not to submit a rejection application. Then the desired business-like atmosphere, which for whatever reason had previously gone a bit, is mostly restored.

Guest comments on the permanent link

@1:

Bias requests can also be of interest if you want to play for a limited time. For example, to extend a labor court process and so "soften" the terminated contractor for a comparison on better terms. However, it only works in the case of bias requests made during the oral hearing if the parties involved are not aware of Section 47 (2) sentence 1 ZPO.

Ursula Hahn comments on the permanent link

Are personal opinions and statements or opinions in negotiations of the judge who welcomed the opposing side with approval permissible and brings advantages to the defendant and thus neutrality is no longer given. Does this also fall under bias, as well as a complaint about delay, since the process has been going on for 2 years for no apparent reason, but the defendant benefits the longer the process is going on and the end is not in sight?

Alexander Würdinger comments on the permanent link

Hello Mrs. Hahn,

The way you describe your case will probably not be enough for a successful rejection request. Such statements by the court are only to be understood as a "preliminary assessment". Many judges also expressly point this out in order to dispel any concerns about bias.

Alexander Würdinger comments on the permanent link

The core sentence reads: "Mistrust in the impartiality of the judge is justified if a party involved in the proceedings has reason to doubt the impartiality of the judge, given reasonable assessment of all the circumstances." I can remember the ZPO lecture at the LMU 30 years ago with Prof. Rimmelspacher. At that time, Prof. Rimmelspacher already spoke literally of the "Potemkin villages" that the judiciary usually sets up around rejection due to concerns about bias. The linguistic picture of the "Potemkin Villages" is in fact pretty accurate: The sentence "Mistrust in the impartiality of the judge is justified if a party involved in the proceedings has reason to doubt the impartiality of the judge, given reasonable assessment of all the circumstances "is just the facade. After many years of experience, after many years of experience, requests for rejection are rejected on the basis of concerns about bias. Arbitrariness, self-righteousness and arrogance in their purest form.

Lutz Lippke comments on the permanent link

The rejection of a rejection request always includes a message from the court about the rejecting party. Since it is not about the proof of an actual bias, but about the "reasonable doubt" of the rejecting party, the rejecting party is regularly denied reason in the matter in the event of a rejection. That is already a far-reaching declaration by the court, which has to show those involved in the proceedings the respect it claims for itself. Even more serious is the rejection because of abuse of rights by rejected judges themselves. In this case, the rejecting party is even assumed to be the fact that this doubt about the judge's impartiality is deliberately only feigning in order to pursue illegal goals. However, I am not aware of any court proceedings against "unreasonable" or "legal abusers" in this context.

I myself have some experience with requests for rejection in ZPO proceedings and can hear the statements made by Mr. Würdinger confirm. Opportunistic motives (food for thought) or tactical considerations (delay) have never led me to a rejection request. Because before a rejection request, I had always informed the court of my specific concerns about judicial behavior or the relevant procedural issues and only after further disregarding my procedural rights I submitted a rejection request. For various case constellations, I can conclusively prove that the judicial handling of requests for rejection is regularly deliberately illegal. Because of this revelation alone, a request for rejection may be appropriate. I could not determine that a rejection request as one of the last means against disregard as a party to the proceedings led to disadvantages in the further proceedings. It is either just continued as before (ignorance) or circumvented the matter with complex maneuvers. In the latter case it is revealed how judges torment themselves against all reason, only to evade the knowledge of the ordinary and faulty or have already lost all ties to reality and law. So nobody needs to explain to me where the overburdening of the judiciary comes from. It definitely comes out of itself.

Schulze comments on the permanent link

With all due respect, their assertion "that the judicial handling of rejection requests is regularly deliberately illegal" is hard to beat in terms of nonsense.

I know rejection requests from pretty much every perspective. As far as I can remember, during my years as a lawyer I only submitted a request for bias once because no decision was made on a PKH application (that is, in terms of procedural tactics). The judge then handled the matter properly.

In my opinion, requests for bias are made in 99% of all cases either because

- the legal assessment by the judge does not suit the requesting party (most common practical case and, according to the unanimous view of the case law, no reason to assume a concern of bias) and / or

- because it seems procedurally advantageous.

In the really rare cases in which a concern of bias can actually be assumed, the judge concerned usually points this out himself.

One should not assume that the statement of bias concerns would be considered somehow dishonorable. Rather, the rejected judge will sometimes be more than happy to get rid of a disgusting matter with unpleasant parties to the proceedings.

sview

Lutz Lippke comments on the permanent link

The dishonorable mistake matryoshka in the right of refusal?

From the justification for a rejection decision of the LG Berlin because of the unfounded rejection request:

"In particular, the criticized acceptance of the now rejected judges also justifies
that the alleged "accumulation of mistakes and unfounded misunderstandings" by the previously rejected judges does not justify bias, - even if it were faulty - not the concern that the now rejected judges were not ready to properly examine the rejection request it would just be a simple flaw.
The same applies if the applicant complains that the official statements are inadequate and the rejected judges made mistakes in the formal process of the rejection procedure. "

The court does not deny that there may have been an "accumulation of mistakes and unfounded misunderstandings" by the rejected judges. Rather, the (possibly) incorrect legal opinion of the judges involved, that an accumulation of errors and unfounded misunderstandings is not a reason for concern about bias, is "only" a simple error, which therefore does not constitute a cause for concern about bias. The fact that the rejected judges did not comment on the reasons for the rejection or on the causes of their errors and their unfounded misunderstanding in the legally required official statements is not a reason for rejection that should be observed by the processing judge. Even if this legal opinion is also incorrect, this is just a simple error in the application of the law by the processing judge. The multiple incorrect processing of the multiple incorrect processing of the multiple incorrect processing does not justify the concern of bias, simply because a rejection request is generally not the Error correction is used.

Alius comments on the permanent link

The fact that a rejection request does not in principle serve to correct errors is completely irrelevant to the question to be decided whether the applicant may have been concerned about bias due to the concatenation of "simple legal errors".
Such a justification is obviously completely beside the point.

The control court is not required to correct errors (which is a matter for the next instance), but to clarify the question of whether this chain of "errors" is likely to cause concern in the applicant.

Experience has shown that such "simple legal errors" also include the thwarting of the prosecution of a wrong EV, fraudulent evidence by the court and demonstrably incorrect logging. Such things are also irrelevant under criminal law.

In this respect, the Würzburg public prosecutor declares in writing:
"According to § 152 Abs. 2 StPO, the criminal complaint of ... dated ... is not followed. According to § 152 Abs. 2 StPO, an investigation into prosecutable criminal offenses is only to be initiated if there are sufficient factual indications. These must be according to criminological experience it seems possible that there is a criminal offense that can be prosecuted. "

This interpretation of Section 152 (2) of the Code of Criminal Procedure speaks for itself. The fact that in DE (except for political or institutional purposes) there is almost no criminal prosecution for infractions of the law takes place / is documented, of course leads to the criminalistic experience that there is no prosecutable criminal offense. Everyone can judge for themselves whether such a derivation is valid or improper. At most it can only be a simple legal error again - this time by the public prosecutor's office.

The public prosecutor's office in Bamberg then notified the complaints against this interpretation and stated that the complaints would not be followed up. The relevant processes were checked with reference to the files and it was established that the decision of the Würzburg public prosecutor's office corresponded to the factual and legal situation.

Obviously, the submission of a complaint is not required in order to be able to decide on a complaint. It thus becomes apparent that any hypothetically possible complaint submission cannot lead to the complaint being successful.

Of course, the correct form was given that a court decision can be applied for in accordance with Section 172 of the Code of Criminal Procedure.
How does this work out in practice? There are also empirical values ​​for this:

In an application under Section 172 of the Code of Criminal Procedure (StPO), it was stated, among other things, that an appeal against a decision was lodged within two working days (with a date) after delivery. The request was denied. The reason given was that the word "timely" was missing here. Because it was not immediately obvious to the court that an appeal filed within two working days had also been filed on time - which must lead to the rejection of the application.

Ultimately, we have to take note of the fact that obvious and cascading violations of the law by judges are merely "simple errors". These are to be accepted by the person seeking the right. The question of whether this effectively undermines the idea of ​​the rule of law does not arise for the decision-makers.

Here is a quote from a veteran judge from 2016: "I am the law".
This brings the problem right to the point.

Guest comments on the permanent link

The ability to distinguish other people's bias from one's own bias is not given to everyone.

Alius comments on the permanent link

Strikingly true.
The bias to be found is usually the same as your own.
No surprise that the test authority then comes to the conclusion that there is no such thing. ;)

G. Johann comments on the permanent link

From decades of professional and personal experience with courts: if responsible persons and organizations elsewhere were to work in the same way, they would either be terminated immediately, bankrupt or in jail.

You can even make a career with it in justice and the environment (see also Judge Dr.P. Burow "Justice on the Abyss", VerfRi Thomas "Vom Sinn des Punens", FAZ online: "Kultur der Kumpanei" etc.). The collapse of society, of social Cohesion and increasing materialization (everything is for sale) is both the cause and consequence of the loss of humanistic and ethical educational values. The fading of scientific-critical reason as a consequence with loss of control up to the failure of actually prescribed legal procedures, complaint handling (if at all, only pro forma) and serious employment only in the case of special public interest from outside or influence or pressure from above. This is accompanied by a flow of money, which benefits financial flows and the redistribution of wealth from the bottom / middle to the top. Also of interest is the increasing real estate and property holdings in the hands of lawyers and their surroundings. In addition to the political parties, the necessary connections are established and maintained subliminally in their - state-subsidized - foundations and lead to non-democratically legitimized and non-transparent power structures with far-reaching influences on influential positions in politics, the media, justice and business as well as parliaments and laws. (see also www.welt.de: The Cartel of State Plunderers / Polit-Foundations) In the meantime, Germany has completely degenerated due to a lack of control looking the other way and favoring an international black money laundering machine through bogus existence, property purchases, undeclared work, mafia centers and illegal gaming and betting office structures apart from human and women trafficking, drug and weapons smuggling. Unfortunately, the voters are kept stupid and deceived about the connections, but everyone can now observe the negative consequences in the big cities, but increasingly everywhere. The current economic situation and flood of money in the coffers, but also the social damage, also originate there. If you do not ask where everything comes from, you will not be able to recognize and determine the way and the end.

Alius comments on the permanent link

This decline is promoted in particular by the fact that the 'public' can no longer carry out its most basic task. Because the 'public' of legal proceedings served the purpose of the public attending the proceedings, convincing themselves of the functioning of the system through their own inspection and confirming it.

Evidently there were occasional hardships many years ago, which led to the failure of the system to induce those involved in the proceedings to sanction this deficiency on their own. These sanctions - which really occurred extremely sporadically - in turn did not lead to the functioning of the system being questioned.

There was also no reason to do so, because the group of people affected is and was, due to the office exercised, per se beyond any doubt about personal integrity.

So it was only opportune to use extensive dissuasive measures to keep the public from participating in the proceedings. Anyone who cannot show a lawyer ID at the entrance - and thus identify themselves as a member of the system - is per se suspect of wanting to commit a criminal offense or even a crime.
Therefore, he / she has to undergo a detailed body search at the entrance.

If you put the number of judges killed in relation to the number of people who have since been searched, smacked and placed under general suspicion, and if you consider the resulting loss of actual public control (media representatives do not replace such control), the real scope of this problem becomes apparent.

Particularly in proceedings in which the public is completely locked out 'to protect those involved in the proceedings', the personalities of the incumbent unfold completely unrestrained. It doesn't really make a difference whether you are on trial in Germany, Russia or China. One is always at the mercy of an individual who is beyond doubt.

There are, by the way, interesting studies on this which deal in detail with the psychological structures of the individuals who press into such offices. These speak for themselves. ;)

Ursula Hahn comments on the permanent link

This is about post-marital maintenance, both are pensioners, the man receives a pension of € 1,000.00 more than the woman (together about € 2,400.00 after pension adjustment), since the woman only has a small disability pension, she receives basic security until the maintenance title exists. The marriage lasted 29 years according to the old husband model, husband works, wife is at home. The man is credited with the basic security, so that he has more advantages the longer the process goes. It is clear that he will have to pay post-marital maintenance, I think that the woman will then receive a retirement pension from 2018 and it has already been stated that there should be no post-marital maintenance, which the other side welcomed very much. The woman does not think unfounded that, since the man has now had two years of benefits and continues to exist, because as I said, no maintenance title has been issued for two years for no apparent reason. That is why a bias application should be submitted, among other things.

Lutz Lippke comments on the permanent link

Guest comments on the permanent link

Well, there would be no entitlement to compensation, since the defendant bears the additional claim, only the larger the sum, the less he will then pay. Since he deliberately keeps the account in the red in order to avoid back payments that he will have to pay sooner or later and that his wife's basic security has been credited to him for 2 years, he is in no hurry. Hence the request for bias, because the woman cannot understand why the title takes so long. The woman says that there is no longer any right to equality because, as I said, all of this has only benefited the man for 2 years. For example, in mid-October 2016 it was found that a letter would have been submitted 2 days too late, but it was only pointed out 3 months later, with the notification that a new appointment must be made, which of course will only be created after 1 month and then the other side delayed again because one of them cannot come to this appointment. As I said, it has been going on for 2 years and this woman does not understand that. The plaintiff feels that it is clearly being made on time ... and the judge does nothing about it, but lets everything go on because the judge is benevolent towards the accused.

Guest comments on the permanent link

Sorry, Mrs Hahn wrote that

Well, there would be no entitlement to compensation, since the defendant bears the additional claim, only the larger the sum, the less he will then pay. Since he deliberately keeps the account in the red in order to avoid back payments that he will have to pay sooner or later and that the basic security of his wife has been taken into account for 2 years, he is in no hurry. Hence the request for bias, because the woman cannot understand why the title takes so long. The woman says that there is no longer any right to equality because, as I said, all of this has only benefited the man for 2 years. For example, in mid-October 2016 it was found that a letter would have been submitted 2 days too late, but it was only pointed out 3 months later, with the notification that a new appointment must be made, which of course will only be created after 1 month and then the other side delayed again because one of them cannot come to this appointment. As I said, it has been going on for 2 years and this woman doesn't understand that. The plaintiff feels that it is clearly being made on time ... and the judge does nothing about it, but lets everything go on because the judge is benevolent towards the accused.

[/ quote]

Ursula Hahn comments on the permanent link

Now that the judge was retiring, I was asked if I would like to keep the bias petition as a new judge will now be assigned to me. I withdrew the application because I did not want the judge to retire with aftertaste, and I hope that this was not a mistake, not that the new judge will pick up where the judge left off, since my application. " Bias "was withdrawn.

Doesn't a judge normally have to finish the litigation before she retires, or is it then quite normal that you get a new judge or whether it only happened because of my application?
I would only be interested in that by the way.

Alius comments on the permanent link

The tiresome experience shows that there are discrepancies between theory and practice that cannot be overlooked. The bigger the procedural problems, the bigger the broom with which the matter is swept under the carpet:

In the previous proceedings, the court had already shone with the fact that submitted applications and their resolved rejection by the court simply disappeared completely from the minutes, but instead asserted the presence of those involved in the proceedings in the minutes, although it can be proven that they were not present were. The court was also ungracious in terms of granting PKH, declaring the relevant legal norm of the BHG to be "inapplicable" ...

It was about the allocation of the marital home in two conflicting eA proceedings.

In one case, the court did not want to raise any evidence as to whether a party, by submitting a false affidavit, brought a definite claim to assignment to a standstill. The false eV was simply swept under the table and the proceedings were discontinued without clarification of the facts.

In parallel proceedings, the same court granted the opponent's application and relied on the opponent's submission, which had not been made credible by any means. Relevant submissions by the local party were nullified by "own investigations" by the court - contrary to obvious facts.

Finally, the court justified its decision in this matter with a completely surprising presentation and cited circumstances whose relevance for none of the parties was foreseeable - and to which it can be proven that none of the parties involved had been heard.

The relevant court of appeal withdrew from the affair without a further oral hearing or assessment of the evidence offered, but granted the appeal insofar as the eviction period was extended. The complaint was thus formally remedied and, as a consequence, further legal recourse in the proceedings was blocked.

To get involved in the rejection lecture or even to obtain the mandatory official statement of the rejected colleague is not necessary for the rejection of the application by the control court.
The rule of law "control mechanisms" have the character of a bad check, at best that of a lottery when we get to the level of institutional self-regulation.

Reader comments on the permanent link

If you want to see reasoned comments on your statements, you should be able to substantiate your allegations against the court. What your allegation, the court did "the relevant legal norm of the BHG declared" inapplicable "" concerns, it is unclear which law and which standard you mean by "BHG", a law that I am not familiar with. If you want help and not just opinion, you should turn to a lawyer.

Alius comments on the permanent link

The facts I have presented are all backed up by official documents. Fundamental findings of the BGH also have the character of a legal norm. The lawyer has already indicated that it would be better to refrain from further prosecution of the matter in order not to expose oneself to the risk of 'formally correct' reprisals. There is no help against this.

Ursula Hahn comments on the permanent link

I now have a different judge, but everything else has stayed the same because the judge's opinions were taken over. A comparison is not possible because my husband continues to throw false information about himself. Not even a swearing-in (was requested 3/4 year ago) has been considered so far. The disputes (after-marital maintenance and gain) have been dragging on for 2 1/2 years, and there is no end in sight - unfortunately. This is not about a company, or greater profit, no, just about normal claims, and I wonder what is so difficult to decide about that.