Bias (Austria)

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A natural person is biased if he or she is not able to act in accordance with the law or the relevant professional ethics due to a prejudice, although he is obliged to do so.

According to the Austrian understanding, bias can only exist in relation to a specific person, but not in relation to an overall organization (e.g. court , authority ).

The reasons for bias are largely the same in civil , criminal and administrative proceedings , despite the different names and descriptions.

Doubts about impartiality

The doubts about the impartiality of an organ must be viewed objectively. The yardstick is an objective observer who is not involved in the matter and who may or may not recognize the impartiality and impartiality of the organ.

In principle, therefore, it is not a criterion whether the organ feels self-conscious or not (although in practice this will regularly lead to the case being dropped). But very much if there are friendly relations between the body and a party or a participant. However, it is not sufficient for bias when z. B. there is a friendly relationship between an institution and an expert.

The subjective concern of a party or a participant that an organ might be biased is not sufficient.

As a rule, there is no bias

  • if the legal view of the body does not coincide with the legal view of a party or participants;
  • in the case of (superfluous) personal remarks by an institution, as long as the official duties are carried out in accordance with the law.

Civil proceedings

In Austrian civil proceedings (civil cases), grounds for partiality are referred to as grounds for refusal and exclusion (§§ 19 no. 2 and 20 para. 1 JN ).

A judge and other judicial organs, secretaries, enforcement officers, employees of the office (and also an expert - Section 355 (1) ZPO ) can be rejected in civil legal matters if " there is sufficient reason to cast doubt on one's impartiality " (Section 19 item 2 JN).

Judges, other judicial organs and experts are excluded from exercising their office in civil cases,

  1. " if they" are themselves a party, or in respect of which they are in the relationship of a jointly entitled, jointly obliged or subject to recourse to one of the parties ";
  2. " in matters of their spouses, their registered partners or those persons who are directly related or related by marriage to them, or with whom they are related up to the fourth degree or by marriage in the second degree, as well as in matters of their partners or such persons that are related to these in a straight line or in the sideline up to the second degree ";
  3. " in matters of their adopted or foster parents, chosen or foster children and foster parents ";
  4. " in matters in which you were or are still appointed as an agent of one of the parties ";
  5. " in matters in which you participated in the issuing of the contested judgment or order in a subordinate court ".

According to § 20 Abs. 2 JN the judge is in the under no. 2 and 3 " cases specified with consideration for the persons named there are also excluded if the close relationship with these persons no longer exists ."

Perception of bias

The right of refusal must be exercised immediately by the party concerned in accordance with § 21 JN. If, although she was aware of or suspected bias, she "got involved in the procedure or made motions ", the party forfeited her right to refusal.

Consequences

If the party has previously unsuccessfully asserted its right to rejection or if the reason for bias emerged later, there may be grounds for invalidity (Section 477 (1) ZPO). According to § 529 Abs. 1 Zif. 1 ZPO, an action for annulment can be brought under certain circumstances.

Criminal proceedings

The bias in the criminal proceedings leads to the exclusion of the organ concerned from the entire procedure or from certain procedural stages.

A judge , lay judges and jury members and, under certain circumstances, clerks for the minutes, are excluded from the entire procedure according to Section 43 (1) StPO , if

  1. " he himself or one of his relatives (§ 72 StGB) in the proceedings is or was a public prosecutor, private prosecutor, private party, accused, defense attorney or representative or could have been harmed by the offense, whereby the marriage-based status of a person as a relative is maintained remains when the marriage no longer exists ";
  2. " he witnessed the act in question outside of his official duties or was interrogated on the matter as a witness or expert or is to be interrogated or "
  3. "there are other reasons that are likely to cast doubt on its full impartiality and impartiality ."

A judge is

  • " Excluded from the main proceedings if he has taken evidence in the preliminary investigation (Section 104 StPO), approves a means of coercion directed against the accused, decided on an objection raised by him or an application for termination or on a decision on the continuation of the proceedings or on a Participated in a judgment that was overturned as a result of an appeal or legal remedy "(Section 43 (2) StPO);
  • " if he himself or one of his relatives in the proceedings as a judge of the first instance, a judge of the first instance, if he or his family member acted as a judge of a higher court " (Section 42 (3) StPO);
  • and he is " excluded from the decision on an application for resumption or an application for the renewal of criminal proceedings (§ 363a StPO) and from participation and decision in the renewed proceedings if he has already acted as a judge in the proceedings " (§ 42 para . 4 StPO).

This applies mutatis mutandis to public prosecutors, organs of the criminal police (§ 47 StPO), interpreters , translators or experts (§ 126 para. 4 StPO).

Perception of bias

According to § 44 StPO, the judge has to abstain from the proceedings if there is a reason for exclusion, otherwise all actions are null and void, and to report this to the superordinate body of his own accord (§ 44 (2) StPO).

In addition, all those involved in the proceedings have the option of filing an application for a judge's rejection due to exclusion (Section 44 (3) of the Code of Criminal Procedure).

Consequences

The affected party can appeal due to nullity (Section 468, Paragraph 1, Item 1 and Item 3 of the Code of Criminal Procedure) or a nullity complaint (Section 281, Paragraph 1, Item 1 and Item 3 of the Code of Criminal Procedure; Section 345, Paragraph 1, Item 1 and Item . 4 StPO).

Administrative procedure

In Austrian administrative procedural law , a distinction is made between absolute and relative bias.

Absolute bias within the meaning of Section 7 (1) no. 1, 2 and 4 AVG from certain administrative bodies, interpreters (official interpreters), translators and experts ( official experts ) is available if

  • " in matters in which you, one of your relatives (Section 36a) or one of your caregivers are involved ";
  • " in matters in which you were appointed or are still appointed as agents of a party ";
  • " in the appeal procedure, if you participated in the issuing of the contested decision or the preliminary decision on the appeal (§ 64a) ."

Relative bias within the meaning of Section 7 (1) no. 3 AVG applies in all other cases " if there are other important reasons that are suitable " to cast doubt on the complete impartiality of administrative bodies " .

Exceptions

In the case of imminent danger, an administrative body must, if representation by another administrative body is not immediately possible, also carry out the un postponable official acts itself (Section 7 (2) AVG).

Perception of bias

In the administrative procedure, every biased body has to exercise the bias ex officio. If a biased body has made a decision, there has been a procedural error which can be reported by appeal against the decision that concludes the proceedings.

Consequences

If the administrative procedure acts contrary to an existing bias, the procedure is inadequate and an administrative decision can be revoked or amended at the request of a party, provided that the decision by the biased body actually turned out to the detriment of the party due to the bias.

European Convention on Human Rights

Art. 6 ECHR grants the right to a procedure before an impartial court. This has an equally constitutionally justified right of the other party to a procedure before the statutory, i.e. H. to judges according to the distribution of business. If a litigant requests a judge's rejection due to partiality, the opponent of the rejection applicant must therefore - except in the case of manifestly unfounded applications - be given the opportunity to express himself before the decision on the rejection application, both in the first and, if necessary, in the second instance.

Lawyers

In Austria, the lawyer is not an organ of the administration of justice and the rules on bias do not apply to them. According to § 9 RAO, the lawyer "has to lead the representations taken over in accordance with the law and to defend the rights of his party against everyone with zeal, loyalty and conscientiousness. He is authorized to do everything that he deems appropriate to represent his party under the law to use their means of attack and defense in any way that does not conflict with his mandate, his conscience and the law. "If he acts contrary to this obligation, he can be held liable and, under certain circumstances, also acts contrary to class .

If a lawyer appointed as procedural assistant " cannot take on or continue the representation or defense for one of the reasons given in Section 10 (1) first sentence, second half-sentence or second sentence of the RAO, or because of bias, he is at his request, at the request of the party or ex officio and to appoint another lawyer "(§45 Abs. 4 RAO )

See also

literature

  • Tanja Maier: Bias in administrative proceedings: the regulations of the EU member states in a legal comparison . 1st edition. Duncker & Humblot , Berlin 2001, ISBN 3-428-10181-2 .
  • Andreas Gerhartl, " Range of bias in administrative proceedings ", ecolex 2013, p. 477.

Individual evidence

  1. ↑ OGH 12 Os 11/08x.
  2. ↑ Supreme Court 11 Ns 17/93.
  3. ↑ OGH 1 Pres 2690-1667 / 09x; 1 Pres 2690-5167 / 09b.
  4. ↑ OGH 15 Os 110 / 12h; 15 Os 144 / 12h.
  5. ↑ OGH 12 Ns 24 / 06k.
  6. ↑ OGH 14 Os 189/87.
  7. ↑ 13 Os 181/01.
  8. ↑ § 26 JN.
  9. ↑ or Exclude lay judges and jury members as well as secretaries under certain circumstances.
  10. ↑ However, he can undertake actions that cannot be postponed, provided he does not have to intervene against his own relative; in this case he has to cede the proceedings immediately.
  11. ↑ Interpreters , translators and experts ( official experts ) can also be rejected by the parties if their impartiality or credible doubts about their specialist knowledge exist (§ 39a and 53 AVG).
  12. ↑ OGH, decision of January 18, 2011 - 4Ob143 / 10y 1.4 (b)