The Dresden Higher Regional Court (3 W 144/21) made a decision on the bias of the judge that was probably very difficult to convey: If a judge had a dispute with one of the parties before the proceedings, which culminated in the judge filing a criminal complaint and one had its own civil lawsuit – then this does not justify the concern of bias with the OLG.
The decision reveals the usual misunderstanding of bias, as is so often the case that bias is associated with a personal accusation against the judge. The bias is not determined from the point of view of the judge, but only from the (objective) point of view of a reasonable party. Whereby, as is well known, the concern of bias is already sufficient.
Nevertheless, the Higher Regional Court quickly gets lost in the fact that his colleague acted very factually in the dispute at the time – and surprisingly says something that leaves you thoughtful:
It is true that the specific circumstances in a case in which the judge has filed criminal charges against a party and initiated injunctive relief proceedings may, when viewed reasonably from the party’s point of view, often lead to the conclusion that the judge can no longer deal with the party’s case impartially. In the opinion of the Senate, however, it cannot generally be assumed that a judge is biased once he has filed a criminal complaint against a party for alleged theft, because otherwise a judge would be expected to forego the criminal protection to which every citizen is entitled ( …)
Therefore, in the opinion of the Senate, the decision as to whether the judge is biased can depend solely on how his reaction or further reaction took place (…). If the judge – as evidently here – has filed his criminal complaint in a factual form, then this does not justify the concern that he is biased (…) The circumstances at the time are also not suitable for inferring bias on the part of the rejected judge (…) Without indications to the contrary in this respect, a professional distance of the rejected judge can be assumed.
The explanations completely miss the point, the judges at the Higher Regional Court were quite clearly worried that they would write unprofessional behavior to their colleagues at the regional court in the register with a certified bias. The reference to an OLG Koblenz decision (OLG Koblenz, 9 WF 606/02) is surprising.
The Rostock Higher Regional Court referred several times to the Koblenz Higher Regional Court, which had indeed made statements with the same content. However, it was about the completely different question of how to deal with it if the judge is insulted by a party in the same proceedings and reacts to this with a criminal complaint. Of course, the usual consideration applies here that a party cannot “get rid of” a judge it dislikes through its own behavior:
It is recognized that the refusing party’s own conduct does not justify a refusal (…). Otherwise it would be up to the party itself to easily eliminate a judge it disliked. However, if a party insults a judge by, like the applicant, calling him a perverter and abettor of a criminal offense, the judge must be able to put the party in its place, including by filing criminal charges against it, without being considered biased (… ).
It is true that the specific circumstances in a case in which the judge files criminal charges against a party may, when viewed reasonably from the party’s point of view, often lead to the conclusion that the judge can no longer deal with the party’s case impartially. However, it cannot generally be assumed that a judge is biased when he files a criminal complaint against a party for insult (…), because otherwise a judge is expected to waive the criminal protection to which every citizen is entitled (…). The judge would have to put up with being the object of personal insults by a party without being able to defend himself with appropriate means if he did not want to be exposed to the fear of bias. Therefore, the decision as to whether the judge is biased can depend solely on how the judge lodges the criminal complaint in the specific case. If he does this – as here – in a factual form, that does not justify the concern that he is biased.
If you look at the decision of the Koblenz Higher Regional Court, the remarkable misunderstanding of the Rostock Higher Regional Court becomes apparent when it states that “a judge would be expected to waive the criminal protection to which every citizen is entitled”. In the case of the Higher Regional Court of Koblenz, this is immediately apparent; in the case of the OLG Rostock, on the other hand, where earlier disputes between the judge and the party are involved, the claim to the statutory judge is twisted into a “judge’s claim to the specific party”.
The decision is bad, it shows an understanding of bias, which reflects one of the biggest problems of the judiciary unfiltered: taking purely factual questions personally, which simply have to be measured against objective criteria. It is not a question of whether one has worked objectively or has filed a criminal complaint in a comprehensible manner, but solely a question of how a party must feel when the person who used to argue with them violently judges them. The fact that an OLG fails on this simple issue and prefers to fabricate something about an objectively worded criminal complaint only makes the whole problem worse.
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