Concept and legal significance of bias
Bias is a central term in German procedural law and describes a situation where a person involved in proceedings no longer maintains impartiality, objectivity, or neutrality, or where there is a well-founded suspicion of a lack of such neutrality. Bias primarily concerns judges, lay judges, experts, interpreters, and other participants in the proceedings, and has far-reaching consequences for the independence and fairness of judicial or administrative proceedings.
Statutory foundations of bias
Bias in civil procedure law
In German civil procedure, Sections 41 et seq. of the Code of Civil Procedure (ZPO) regulate the disqualification of a judge due to bias. According to Section 42 ZPO, a judge may be challenged if there is a reason that could justify mistrust in their impartiality. Actual prejudice is not required; a ‘well-founded suspicion’ is sufficient. The decisive criterion is the perspective of an objective participant in the proceedings.
Absolute and relative grounds for challenge
The law names so-called absolute grounds for exclusion (§ 41 ZPO), such as the participation of the judge in previous instances of the same matter or close personal relationships with the parties. Beyond this, the law provides for challenge on other grounds of bias or the appearance of bias (§ 42 ZPO).
Bias in criminal procedure law
In criminal proceedings, bias is addressed in Sections 24 et seq. of the Code of Criminal Procedure (StPO). Here as well, there is a right to challenge judges and lay judges. Section 24 StPO regulates the exclusion and challenge of court personnel, with similarly high standards for impartiality. Additionally, criminal procedure distinguishes between statutory grounds for exclusion and grounds for challenge due to concern of bias.
Bias in other procedural codes
The Code of Administrative Court Procedure (VwGO), the Tax Court Code (FGO), and the Social Court Act (SGG) also contain similar regulations for challenging due to bias. In all cases, strict standards are imposed on judicial neutrality to protect confidence in the judiciary.
Personal and substantive scope
Who can be challenged for bias?
The provisions on bias apply, in addition to judges and lay judges, also to bailiffs, judicial officers, prosecutors, judicial clerks, and all court-appointed persons whose actions can influence the proceedings. Bias is also regulated for experts (§ 406 ZPO; § 74 StPO) and interpreters, as their impartiality is equally of decisive importance.
Parties and participants in the proceedings
As a general rule, parties, defendants, or participants themselves cannot be challenged for bias. The provisions aim to protect the neutrality of those acting as neutral participants in the proceedings, not the subjective partiality of the parties to the dispute.
Procedure for bias applications
Application and form
The application for recusal due to bias must be submitted in writing or for the record at the court office. The application must state the reason for the challenge and must be filed promptly after the grounds for bias become known.
Standard of review and decision
The court decides on the motion for recusal, with a neutral panel being formed—generally excluding the judicial officer who was challenged. The standard is objective: it is sufficient if, from a reasonable perspective, there is cause to doubt the objectivity of the person challenged.
Legal consequences of bias
If the court determines there is bias, the person concerned is excluded from the proceedings and a neutral replacement is appointed. Judicial decisions involving an actually biased judge may be considered void or at least subject to challenge (§ 547 No. 1 ZPO; § 338 No. 3 StPO).
Reasons for bias
Typical grounds for bias
- Prior involvement: The judge has previously ruled in the same matter or participated in investigations.
- Personal relationships: Friendship, kinship, or animosity with a party or their representatives.
- Public statements: The judge has taken a public position on the subject of the proceedings.
- Financial or material interests: The judge or expert is financially interested in the outcome of the proceedings.
Insufficient reasons
Not all criticism, dissatisfaction, or judicial acts justify a motion for bias. Only when conduct is likely to raise serious doubts about neutrality does a ground for bias exist.
Bias in the international context
Other European legal systems have comparable rules for the challenge of judges due to bias. The European Convention on Human Rights (ECHR), especially Art. 6 para. 1 ECHR, also emphasizes the right to an impartial and fair trial.
Significance of bias for the legal system
The neutrality and impartiality of court personnel are central prerequisites for due process of law and for public confidence in the judiciary. The law on judicial bias serves as an essential tool for safeguarding these basic principles.
References
- Thomas/Putzo: Code of Civil Procedure with Courts Constitution Act
- Löwe-Rosenberg: Code of Criminal Procedure
- Kissel/Mayer: Courts Constitution Act
Note: This article serves to provide comprehensive information regarding the term “bias” under German law and does not replace individual legal counsel.
Frequently asked questions
When and how should a motion for recusal due to bias be filed?
A motion to recuse a judge due to bias must in principle be filed immediately as soon as the party concerned becomes aware of the ground for challenge. The Code of Civil Procedure (§ 44 ZPO) specifically requires that the application cannot be delayed arbitrarily but must be filed without undue delay (immediately). For a challenge application to be admissible, a substantiated justification is required: the applicant must present in detail the actual circumstances from which the alleged bias arises. The decision on the application is usually made by the court without the involvement of the challenged judge. If an application is filed late or without sufficient reasoning, it is inadmissible and will be dismissed as unfounded. Similar rules apply in criminal proceedings (§ 24 StPO), where a precise statement of reasons for the challenge is also required. Deadlines may differ in individual cases, for example, in the context of oral or written hearings—the decisive point is always when the grounds for challenge became known.
What specific behavior can constitute a ground for bias?
Bias is not assumed based solely on the subjective distrust of a party, but requires objective facts that could lead a reasonable participant to doubt the impartiality and neutrality of the judge. Typical behaviors that may give rise to grounds for bias include, for example: clear partisanship during the hearing, insulting or derogatory remarks toward parties or their representatives, unequal treatment of participants, unexplained frequent delays in the proceedings to the detriment of one party, excessive questioning of only one party, or a relationship between the judge and a party outside the court (e.g., kinship, economic ties). Prior involvement in the subject matter in another capacity can also serve as a ground for bias. However, not every behavior perceived as inappropriate is sufficient; what matters is always the objective perspective.
How is bias decided and what remedies are available against this decision?
A motion to recuse a judge for bias is generally decided by the court to which the challenged judge belongs, always without their involvement (§ 45 para. 1 ZPO). If the motion is rejected and the party considers this decision incorrect, different remedies are available depending on the procedural code: In civil procedure, there is generally no remedy against the rejection; the decision can only be reviewed together with the main case via appeal or revision. In criminal proceedings, however, an immediate, time-limited remedy is available (§ 28 para. 2 StPO). Comparable provisions exist in administrative proceedings (§ 54 VwGO). In special exceptional cases (e.g., gross procedural errors), a complaint may also be made in the proceedings. Other than that, the proceedings continue after the decision on the motion, unless the motion is granted.
Is actual bias required, or is the appearance of partiality sufficient?
Under German procedural law, it is sufficient if there is the so-called ‘appearance of partiality’; it is therefore not necessary to prove actual prejudice or partisanship of the judge. The decisive factor is whether, from the perspective of a reasonable party, there could be doubts about impartiality (objective standard). It is enough if a particular objective situation is suitable to justify mistrust in impartiality—neither the subjectivity of the applicant nor the actual neutrality of the judge is decisive. The aim is to protect the general public’s trust in the integrity of the judiciary. If there are sufficient objective indications that are externally recognizable, the judge will as a precaution be removed from the proceedings.
What significance does participation in previous decisions have for a motion for bias?
A judge’s participation in previous decisions of the same dispute can in particular constitute grounds for bias if it creates objectively verifiable doubts about their impartiality. Under Section 41 ZPO, for example, a judge is legally prevented from acting if they have already participated in a prior decision (judgment, order, etc.) in the same matter as a judge. The situation is different, however, if a judge dealt with the case at an earlier stage of the proceedings without reaching a final decision (e.g., ordering interim measures); here, mere previous involvement is usually not sufficient to justify bias. What matters is whether the judge is predisposed due to prior statements or actions in a way that externally raises doubts about their continued impartiality.
Can a court expert or a lay judge also be challenged for bias?
Yes, the right to challenge for bias applies not only to professional judges but also to lay judges (for example, lay judges in criminal proceedings) and court-appointed experts. The relevant provisions can be found in the applicable procedural codes (e.g., § 42 ZPO for experts), with grounds for challenge being similar to those for professional judges. In particular, experts are typically deemed biased if personal, economic, or other relationships exist with a party, doubts about their objectivity arise, or previous statements or conduct suggest partiality. For lay judges, the specific provisions of the Code of Criminal Procedure apply (§§ 31, 24 et seq. StPO). The procedure largely follows that for judges: here, too, motions must be substantiated and filed without delay.
