After the birth is absolute service ban

BGH: Even independent judge may not work immediately
Karlsruhe (jur). Mothers can not choose to continue working immediately after the birth of their child. After the statutory maternity leave is an "absolute prohibition of service" - and without exception, ruled on Monday, November 7, 2016, the Federal Court (BGH) in Karlsruhe (Az .: 2 StR 9/15). He declared that the occupation of the judge's bench in a criminal case for faulty, because at the verdict a judge in maternity protection had participated.

Specifically, it was a criminal case in the district court Darmstadt. During the 20-month main trial of the alleged offender, a judge became pregnant. An adjunct judge, if the judge should fail, had not been called to the trial.

(Image: stanislav_uvarov / fotolia.com)

When the Christmas holiday was suspended in 2013, the judge gave birth to her child. At the beginning of the new year, the proceedings continued.

The defendant's defender discovered that the judge's waist circumference did not increase but decreased significantly, and that the pregnant woman had apparently given birth to her child in the meantime. The lawyer complained that the judge's bench was faulty. Because even for the judge, the statutory maternity leave would apply. Thereafter, mothers are allowed to work for up to eight weeks and for multiple pregnancies and premature births up to twelve weeks after the birth of the child.

The district court rejected the occupation objection. The judge colleague voluntarily continued to participate in the main hearing. Due to her judicial independence, she is free to exercise her judicial office during the period of statutory maternity leave.

But the BGH ruled that the judge's bench in the criminal proceedings had indeed been occupied incorrectly. The entire trial must be repeated.

The Maternity Protection Act provides for an "absolute prohibition of service". It is not at the discretion of the judge whether or not she makes use of statutory maternity leave - even if the judicial office is independent. The legislation was designed to prevent mothers coming under decision-making pressure to go back to work immediately after delivery. fle / mwo