Exclusion from the office of judge

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An exclusion from the magistracy is when a judge by law in a particular matter may not act.

Legal bases

The exclusion from the judicial office is regulated in § 41 ZPO , § 22 , § 23 StPO . Other procedural rules such as § 6 FamFG , § 54 VwGO , § 60 SGG refer to these regulations or contain their own provisions such as § 18 BVerfGG . In the cases of exclusion from the office of a judge, with regard to the principle of the legal judge according to Article 101.1 sentence 2 GG, there is such a blatant conflict of interests that the exercise of the office of judge is prohibited by law.

The statutory reasons for exclusion are to be taken into account ex officio. The fear of bias against it must begin with a challenging petition be asserted. A judge who is excluded by law from exercising the office of judge may, however, not participate in the proceedings even if no request for rejection is made against him.

Individual reasons for exclusion

Code of Civil Procedure

According to § 41 ZPO a judge is excluded from the exercise of the judicial office by law:

  • in matters in which he himself is a party or in which he has a co-entitled, co-obligated or recourse to a party;
  • in matters of his spouse, even if the marriage no longer exists;
  • in matters of his partner, even if the partnership no longer exists;
  • in matters of a person with whom he is or was related in a straight line or by marriage up to the third degree or by marriage up to the second degree;
  • in matters in which he is or was authorized to act as legal representative of a party or as legal representative of a party;
  • in matters in which he has been heard as a witness or expert;
  • in matters in which he was involved in the issuance of the contested decision in an earlier instance or in arbitration proceedings, provided that it is not the work of a commissioned or requested judge;
  • in cases of lengthy legal proceedings if he has participated in the disputed proceedings in a legal process for the duration of which the claim for compensation is based;
  • in matters in which he has participated in a mediation procedure or another procedure for out-of-court dispute resolution.

Code of Criminal Procedure

According to Section 22 of the Code of Criminal Procedure, a judge is excluded by law from exercising the judicial office,

  • if he himself is injured by the crime;
  • if he is or has been the spouse, civil partner, guardian or guardian of the accused or the injured person;
  • if he is or was related by marriage to the accused or the injured person in a straight line, related by marriage up to the third degree or related by marriage up to the second degree;
  • if he was active in the matter as an official of the public prosecutor's office, as a police officer, as a lawyer for the injured person or as a defense counsel;
  • if he is heard as a witness or an expert on the matter.

Section 23 of the Code of Criminal Procedure also mentions prior participation

  • in the event of a decision contested by an appeal
  • in the case of a decision contested by an application to reopen the proceedings.

Administrative procedural law

In administrative procedural law, in addition to the reasons in civil law, a judge according to Section 54 VwGO is also excluded by law from exercising the judicial office if he has participated in the previous administrative procedure . These regulations apply accordingly to the social and tax court processes. ( § 60 SGG, § 51 FGO)

Federal Constitutional Court Act

A judge of the Federal Constitutional Court is excluded from exercising his judicial office in accordance with § 18 BVerfGG if he

  • is involved in the matter or is or was married to a party, leads or led a civil partnership, is directly related or related by marriage or is related up to the third degree or by marriage up to the second degree (Section 18 (1) No. 1 BVerfGG) or
  • has already been officially or professionally active in the same matter (Section 18 (1) No. 2 BVerfGG). However, this does not include participating in the legislative procedure or expressing a scientific opinion on a legal issue that may be relevant to the procedure (Section 18 (3) BVerfGG).
  • is interested in the outcome of the proceedings on the basis of his marital status, his occupation, his origin, his membership of a political party or from a similar general point of view (Section 18 (2) BVerfGG).

State constitutional courts

The procedural rules of various state constitutional courts contain the following provisions regarding the exclusion from judicial office:

Bavaria

Art. 9 BayVerfGH G refers to §§ 22 to 30 StPO.

Brandenburg

§ 14 VGHG Brandenburg corresponds to the regulation in § 18 BVerfGG.

NRW

§ 14 VGHG NRW also corresponds to the regulation in § 18 BVerfGG.

Legal consequences of a breach

The participation of a judge who is excluded by law from exercising the office of judge is an absolute reason for revision in civil law as well as in criminal procedure law ( Section 547 No. 2 ZPO, Section 338 No. 2 StPO).

Web links

Individual evidence

  1. ↑ BGH 1 StR 454/18 - decision of September 18, 2018
  2. ↑ Karlsruhe Commentary on the Code of Criminal Procedure, author Scheuten, 7th edition 2013, Rn. 7 to § 22 StPO
  3. ↑ cf. Why judge at the BVerfG Peter Müller was declared biased Haufe Online, May 29, 2018
  4. ↑ Art. 9 of the Act on the Bavarian Constitutional Court (VfGHG)
  5. ↑ § 14 of the law on the constitutional court for the state of Brandenburg
  6. ↑ § 14 of the law on the constitutional court for the state of North Rhine-Westphalia