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BSG: The judge bench is then not properly staffed
A sleeping judge cannot mentally follow a litigation at the hearing. If a lawyer falls asleep, this is therefore a procedural violation, the Federal Social Court (BSG) in Kassel decided in a decision published on Thursday, May 18, 2017 (file number: B 13 R 289/16 B). With such a persistent “mental absence”, the judge's bench was no longer properly staffed.
The background to the proceedings was a dispute over a claimant's right to a disability or disability pension. The State Social Court (LSG) Baden-Württemberg had held an oral hearing on August 5, 2016.
But the trial had difficulties starting. A voluntary judge was clearly late and was still very tired. When the LSG rejected the pension claim, the plaintiff lodged a complaint with the BSG against the non-admission of the revision and justified this with the nap of a judge.
The honorary judge, who was late, "fell asleep immediately with his head sunk on his chest" and "breathed deeply and audibly". During the hearing, he slept for almost 30 minutes and therefore did not notice any significant part of the lawsuit. Only after the hearing was almost over did he open his eyes again. He was therefore not allowed to decide on the negotiated litigation.
The BSG confirmed the procedural deficiency in its decision of April 12, 2017 and referred the litigation back to the LSG for review. If a judge falls asleep deeply, he is "mentally absent", so that the judge's bench is no longer properly staffed.
A short closing of the eyes or a lowering of the head on the chest does not yet prove that a judge is sleeping. This attitude can also be "for mental relaxation or special concentration," emphasized the BSG. Even struggling with tiredness or a tendency to sleep is not yet evidence that the judge can no longer perceive the proceedings in the trial. But things could look different if the judge also breathes deeply, audibly and evenly, or even snores.
Here it is obvious that the honorary judge was actually "mentally absent" during significant parts of the hearing. Several credible witnesses confirmed sleep. A professional judge kicked his volunteer colleague with his foot "decently" several times, so that he was suddenly startled.
Although the professional judges could not confirm a continuous sleep because they did not always have their colleague in view, witnesses in the courtroom confirmed that the voluntary judge didze off immediately after a brief start.
The Federal Finance Court had already made it clear in a decision of October 19, 2011 that a procedural defect due to a sleeping judge was only present if the essential parts of the proceedings could not follow a hearing (file number: IV B 61/10; JurAgentur report from 14. December 2011). An "intellectual absence" is only available if the relevant evidence is provided.
Closed eyes alone or a jerky erection of the upper body did not necessarily indicate sleep or a sudden wake up. This could also be an expression of a particular concentration or, when jerking upright, an expression of a previously uncomfortable attitude, as the BSG now also meant the BFH. fle / mwo