We are all human
The 2nd Criminal Chamber of the German Bundesgerichtshof allowed an appeal against the decision made by a lower Court (Landgericht Frankfurt), while one Judge arranged child care by text message during the hearing and whilst a witness gave evidence (Az.: 2 StR 228/14). Already during the lower court criminal hearing the legal team for the defendant had made an application to dismiss the Judge who had used her phone in Court for her own private child care arrangements. The legal team argued that she had already made her mind up, before all the witness evidence was heard.
The lawyers made an application under §24 StPO (so called “Befangenheitsantrag”). Such an application has to be made before the end of the trial process and before the defendant has his last word. The provisions state that mobile phones have no place in the courtroom, and bans judges from using them while hearing a case. Every defendant has the right of a fair trial and has a constitutional right to a non-bias Judge (Art 101 GG).
At the time, the judge was presiding over the trial of two men on stabbing charges at a court in Frankfurt. Lawyers for the accused lodged a motion of bias against the defence after the judge was seen using a mobile phone.
Germany’s Federal Court of Justice (BGH) threw out the convictions after the judge – who has not been identified – was found to have checked their phone several times during 10 minutes of witness testimony. The judge also texted a babysitter twice when the hearing ran over longer than expected.
BGH judge Thomas Fischer said mobile phones,
“do not belong in the courtroom – that goes for onlookers, lawyers and of course also for judges”.
He stressed that judges must be focused on the case at all times.
“No text please….”
As a consequence of the texting judge’s actions, the whole process has to be heard again now before a different criminal chamber of the Court in Frankfurt (“Landgerichtskammer”). That will also include the hearing in which the evidence was given.
This is not the first time such judicial distractions have been in the dock. In a separate case, a “Schoeffen” Judge hearing a criminal case gave chocolate on Nikolaus to everybody in the Court room including the Prosecutor. In that case, the defendant’s legal team appealed because of the Judge’s actions. The appeal was allowed on the basis that it is not beyond probability that the Judge had already made his mind up at a very early stage of the hearing.
Head of International Family Law, Frank Arndt says:
“These cases show that valuable court time will be used to make sure that every defendant’s right of a fair trial will not be breached. As Albert Einstein says, “it has become appallingly obvious that our technology has exceeded our humanity”.
We at Paradigm Family Law will let you know if the court comes to a different conclusion when judgment is ultimately given – if you let us have your mobile details we might even send you a text message with the result. Contact us on 0845 6020422 or email at [email protected].
About the Author: Frank Arndt is one of the founding Partners of Paradigm Family Law. After working over 13 years as Head of International Family Law and being dual qualified as a Solicitor and Rechtsanwalt, Frank developed together with James Thornton, a tailored “bespoke fixed fee model” in national and international family financial proceedings. No other firm in the UK offers this unique service. Frank believes that clients need to take control over their legal costs and the fixed fee model give them the opportunity. Let not the divorce costs control you, make sure you are the first to control the divorce costs.