Judgment Sleeping Judge is considered mentally absent

BSG: The judge's bench is not filled according to regulations
A sleeping judge can not mentally follow a litigation in the hearing. If a lawyer falls into a deep slumber, this is therefore a procedural violation, decided the Federal Social Court (BSG) in Kassel in a decision published on Thursday, May 18, 2017 (Ref .: B 13 R 289/16 B). With such a persistent "mental absence" the judge's bench is no longer occupied according to regulations.

Background of the proceedings was a dispute over the claim of a plaintiff on a disability or invalidity pension. The Landessozialgericht (LSG) Baden-Württemberg held a hearing on 5 August 2016.

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But the trial had startup problems. An honorary judge came clearly too late and was still pretty tired. When the pension claim was rejected by the LSG, the plaintiff filed a complaint against the non-admission of the appeal with the BSG and justified this with the nap of a judge.

The late-coming volunteer judge "fell asleep immediately with his head sunken on the chest" and "breathed deeply and audibly". During the oral proceedings, he slept for almost 30 minutes and therefore did not hear much of the litigation. Only after the hearing was almost over, he opened his eyes again. Therefore he was not allowed to decide on the negotiation.

The BSG confirmed the procedural violation in its order of 12 April 2017 and referred the case back to the LSG for re-examination. If a judge falls asleep deeply, he is "mentally absent", so that the judge's bench is no longer properly filled.

However, a brief closing of the eyes or a lowering of the head on the chest does not prove that a judge sleeps. This attitude could also be taken to "mental relaxation or special concentration," said the BSG. Even fighting fatigue or the propensity to sleep was not proof that the judge could no longer hear the proceedings. But this could be different if the judge also breathes deeply, audibly and evenly or even snores.

Here it is obvious that the honorary judge was indeed "mentally absent" during significant parts of the hearing. Several credible witnesses confirmed their sleep. A professional judge had repeatedly kicked his volunteer colleague with his foot, so that he was suddenly startled.

Although the professional judges could not confirm a continuous sleep, as they did not always have their colleagues in view, but witnesses in the courtroom confirmed that the honorary judge was even after a short fright immediately fell asleep again.

The Federal Finance Court had already made it clear in a ruling of 19 October 2011 that a procedural violation of a sleeping judge is only present if the essential parts of a trial could not be followed (Ref .: IV B 61/10; December 2011). Only with appropriate evidence is there a "mental absence".

Closed eyes alone or a jerky upturn did not necessarily indicate a sleep or a sudden awakening. This could also be an expression of a particular concentration or the jerky straightening expression of a previously assumed unpleasant attitude, meant similar to the BSG now also the BFH. fle / mwo