(Sept. 10, 2015) On June 17, 2015, the German Federal Court of Justice (Bundesgerichtshof, BGH) held that the private use of a cell phone by a judge during the questioning of a witness in the trial of a case created an appearance of impropriety and bias and thus constituted absolute grounds for appeal of the verdict. The Court reversed the lower court’s decision and remanded the case to a different chamber of the lower court for a new trial and decision on the merits. (BGH June 17, 2015, 2 StR 228/14 (in German).)
The two defendants had been charged with aggravated assault and had received sentences of three years’ imprisonment for one defendant and four years and six months of imprisonment for the other. (Id. ¶ 1.) They appealed the decision on the grounds that it had been rendered by a judge who was challenged for bias and that the motion was erroneously rejected. (The German Code of Criminal Procedure: StPO (Apr. 7, 1987, as amended), BUNDESGESETZBLATT I at 1074, 1319, § 338 No. 3, GERMAN LAWS ONLINE.) According to section 24, paragraphs 1 and 2 of the German Code of Criminal Procedure, a judge can be challenged for bias when there is reason to doubt his or her impartiality.
One member of the five-judge panel was challenged for bias when she used her cell phone several times during questioning of a witness for a total period of ten minutes. The judge later apologized and declared in her official statement that she had used the phone to respond to a call by sending a pre-written text that she was still in court. She also stated that she had answered another text about the organization of her child care “within seconds.” (BGH, 2 StR 228/14, ¶ 4.)
Reasoning of the Decision
The Federal Court of Justice held that the question of whether the actions of a judge create the appearance of bias has to be answered from the perspective of the accused. (Id. ¶ 7.) It stated that the private use of a cell phone during the ongoing trial creates the appearance of bias, because it gives rise to the assumption that the judge is not paying attention, because he or she has already reached a verdict. (Id. ¶ 8.) Furthermore, in the opinion of the Court, sending a pre-written text implies that the judge had been planning from the beginning to actively communicate in private matters during the trial. (Id. ¶ 9.)
The Court declared that by distracting herself with private matters, the judge placed private matters above her professional duties. (Id.) It concluded that the actions of the judge could not be qualified as merely careless behavior and excused with an explanation and an apology, because they did not constitute just a temporary distraction. (Id. ¶ 10.)