Mailed today, March 8, 2022. Will they accept it? Big question. This is the EU and one never knows. Might be simply shelved by single-judge decision. We’ll see.
The application form consists of 13 pages and is available here in several languages. The most relevant pages are the pages 5 to 10 and page 12 with the list of accompanying documents. Let’s go.
E. Statement of the facts
58.
Renewed rejection of a motion to recuse a judge of the Munich Social Court.
The complainant (hereinafter ‘C.’) and his Tibetan daughter (born 1995) returned to Germany from Nepal in 2005 because of the Maoist movement and the associated deterioration of the general situation of public and school life. For years, he has been involved in legal disputes with the Jobcenter Munich (hereinafter ‘JC’), which in particular massively disadvantaged his daughter. In numerous cases he saw a clear partisanship of the Social Court (hereinafter ‘SC’) judge in favor of the JC. Thirteen petitions for his replacement were fruitless.
The part of the chairman of the 42nd chamber of the Munich SC, Judge Ehegartner (hereinafter ‘Judge E.’), in the representation of the interests of the JC includes suppression of documents, refusal to allow the lawyer to inspect files over two years in three cases concerning the C.’s daughter. He communicates with the C. instead of the lawyer. Not an isolated case at the SC according to Google Reviews! An according to the BSG (Federal Social Court) indispensable ‘transfer contract of the JC/City of Munich’ did not interest him. He is indifferent to a breach of data protection of the C.’s daughter. The threat of seizure and the associated possible ruining of the bank creditworthiness of the C.’s daughter left him cold. He denies the existence of a power of representation of his daughter and a sublease contract of the daughter. In case S 42 AS 1398/16 (Right to visit parent) he suppresses important email communications with the Munich Youth Department and thus denies payment of airfare. The mother had taken a loan of $ 1,000 to cover the costs so that her daughter could see her mother in Nepal after four years. He refuses the release of the JC’s email server logs as proof of the suppression of documents with the C.’s reference to the IFG (Information Freedom Act) (case S 42 AS 2594/16 Vacation job earning). Legal reasonings and references to court decisions by the C. find no resonance in his decisions. He insists on electronic forms of communication that do not exist at the JC. Judge E. has a habit of claiming that the C. had not filed an objection with the JC. A particularly salient case of devious conduct by both the SC and the Bavarian LSG is case S 42 AS 1596/19 in which the C. demands the repayment of €1,300.00 from the JC. In this case the Bavarian LSG contradicts itself in its decision when it denied the existence of an objection in its reasoning and on page 2 admits the existence of the objection.
This complaint is based on the decision of Aug. 25, 2021 ref. S 31 SF 299/21 AB (A 1) of SC Judge Schulte, who for the second time rejected the application for discharge of Judge E. as already on Dec. 29, 2020. (A 2) The decision of Aug. 25, 2021 ref. S 31 SF 299/21 AB (A 1) is based on the request of the C. for discharge of Judge E. to the President of the SC of Aug. 07, 2021 with reference to a decision of the Federal Constitutional Court 2 BvR 890/20 – recital 14. (A 3)
The C.’s patience with judge E. was exhausted when he saw his March 03, 2021 request for reopening of five cases (A 4), three of them concerning his daughter, deliberately reduced to only one case S 42 AS 1103/18 {monetary claim} in the letter of the SC of April 16, 2021. (A 5) In this request for reopening of March 03, 2021, the C. criticized the ad nauseam given reasoning by Judge E. in numerous cases for his negative decisions, according to which “objection had not been filed in due form (§ 84 SGG)” because the “email precisely did not contain a qualified electronic signature and thus did not meet the requirements of § 36a para. 2 sentence 2 SGB I”.
In four cases S 42 AS 2594/16 vacation job earning (A F1), S 42 AS 992/18 Computer Tablet, S 42 AS 1103/18 and S 42 AS 1596/19 Monetary claims (A F2) he uses this reasoning. An independent judge would have dutifully taken a look at the JC’s website and likewise the letterhead of the JC’s letters to realize, the JC does not provide a way to send an email with a qualified signature, but only a normal email address. Therefore, default according to § 36a para. 1 SGG applies.
As early as Sept. 2019, the C. had filed a lawsuit for the assumption of costs for DocuSign (A 6) in the interest of the parties. This action under ref. S 42 AS 1728/20 has been denied without reason in Feb. 2022. DocuSign is GDPR compliant and authenticates the recipient, who is previously specified by the sender, confirming that the document has been read and at what time. This confirmation is especially important as JC employees repeatedly claimed not to have received essential emails. By denying this complaint, the impression arises that the SC considers transparency unnecessary.
Statement of the facts (continued)
59.
In Aug. 2021, the C. received the ‘Official Statement’ of Judge E. (A 7) and commented on it on Aug. 23, 2021 (A 8).
In her decision, Judge Schulte ruled negative for the second time. This casts doubt on her independence. All the more so as she cleverly disregarded case ref. S 42 AS 165/17 in the C.’s first request, which leaves one speechless. Judge E. had deliberately falsely claimed at the hearing in Oct. 2020 in the presence of C’s lawyer that the C.’s daughter had not sent a power of representation (A 9) to the SC. (A 10)
The C.’s attorney was not granted access to case files for more than two years. (A 11, 12, 13) The power of attorney was signed by the C. in Nov. 2018. (A 14) Furthermore, a power of attorney of the daughter is not necessary according to § 73 para. 6 and 7 SGG. The Federal Court of Justice (BGH) commented on the multiple rejection of a request for file inspection in its decision of Jan. 29, 2021 – AnwSt (B) 4/20.
Judge Schulte shows on page 1 of her Aug. 25, 2021 decision that she lacks probity and independence, (A 1)
“Der Antragsteller hat unter dem Aktenzeichen S 42 AS 1103/18 ein Klageverfahren auf höheres Arbeitslosengeld ll von Dezember 2O17 bis Mai 2018 geführt. …”
“The claimant has brought an action for higher unemployment benefit ll from December 2O17 to May 2018 under file number S 42 AS 1103/18. …”
This is deliberately misleading. The C. had cited five cases for reopening. (A 4)
According to the C.’s knowledge, the President of SC Mrs. Mente was in contact with the Munich Public Prosecutor’s Office in the period from June 2, 2020 to June 16, 2021 (A PSC 1, PSC 2) due to alleged insults of Judge E. by the C. (Az. 845 Ds 259 Js 153060/20) The C. is perplexed, how a court, which is in contact with the public prosecutor’s office Munich over a period of one year and was “supplied” in this period with submissions against the C. by Judge E., is able to judge independently and unprejudiced. Several negative decisions by Judge E. fell into this period. One wonders why a president of a social court does not preemptively relieve the judge of the cases. Perhaps it was assumed that the public prosecutor’s office would not grant access to the files. “False face must hide what the false heart doth know.”
Even more perplexing is why a judge is so eager to continue to judge after these declarations of no confidence. To suppress documents, to table fraudulent decisions in disregard of the BSG judgment of 24.11.2010 – B 11 AL 35/09 R (keyword “allowance” (“Freibetrag”)), to accept open racist insinuations from the JC unquestioned (sublease contract of the daughter deemed not credible), to ignore an important witness summons.
A monetary adjustment from 2019 onwards decided by the Federal Cabinet, to which the JC deliberately did not comply (action in Sept. 2019, S 42 AS 1968/19), leaves him cold and he passes a complaint for failure to act of May 2020 on to the Bavarian LSG at a cost of € 560.00. There is nothing at all to decide for a judge here. It is virtually a law.
He forces the C.’s daughter to appear in court in person under the threat of a penalty payment of € 1,000 in the event of non-appearance. (A 15) This in a case in which part of her earnings from a vacation job were requested by the JC by threatening confiscation. (S 42 AS 2594/16)
If, in Judge Schulte’s view, the “distrust (must) be understandable from the point of view of a calmly and reasonably thinking party”, the C. fails to understand how she can regard the passage in para. 17 in the Federal Constitutional Court’s decision 2 BvR 615/11 as irrelevant:
“… In the case law of the higher courts, it is recognized that the filing of a criminal complaint against a party or its announcement by a judge does not justify the apprehension of bias without further ado, because the law itself allows the filing of a complaint by the court (§ 149 ZPO) and in some cases also requires it (§ 183 GVG). However, it is also recognized that the concern of partiality can arise from the concrete circumstances of the filing of the report …. According to the prevailing view, the filing of a criminal complaint does not constitute grounds for bias only if the judge has previously carefully weighed the existing circumstances of suspicion and exoneration and has given the party the opportunity to comment …”
Statement of the facts (continued)
60.
The presumption of innocence seems to be anathema to Judge Schulte when she writes:
“Even the fact that the President actually filed a criminal complaint against the plaintiff does not, from the point of view of a calm and reasonably thinking party to the proceedings, give rise to the apprehension of bias on the part of the judge to whom the insults were uttered.” (A 1 p.4)
The hearing at the District Court Munich was in Oct. 2021 and after the C.’s declarations the prosecution reduced its prior accusations to a considerable extent. The case is pending at the Regional Court. Judge Schulte contravenes Article 20 (3) of the Basic Law in conjunction with Article 28 (1) sentence 1 of the Basic Law and Article 48(1) of the Charter of Fundamental Rights.
Judge Schulte furnishes an abstruse reasoning according to which “a litigant (would) always have the possibility to ensure that a judge is biased by insulting a judge he does not like, if the judge in question defends himself against the alleged insults, with the consequence that another judge would become responsible in the legal dispute. This would not comply with the principle of the lawful judge enshrined in Article 101 (1) sentence 2 of the Basic Law.”
Judge Schulte is also indifferent to ECtHR ‘Case of Ferrantelli and Santangelo v. Italy’ (Ref. 48/1995/554/640) keyword “double circumstance”, which has a striking resemblance to this case.
The C. received further proof of Judge E.’s indifference by email dated Sept. 21, 2021, in which his attorney states that she has not yet received a response to the inquiry of June 8, 2021 in the case S 42 AS 1398/16 (Wahrn. des Umgangsrechts – Right of child to visit parent). (A 16)
In total, six applications were filed by the C. with the SC to see Judge E. relieved:
– Case at hand,
– Motion filed Nov. 09, 2020 and denied by Judge Schulte,
– July 21, 2020 and denied by Judge Rimmelspacher by decision dated Sept. 3, 2020,
– Motions filed March 2019 (to Pres. Mente), Dec. 18, 2019, Feb. 2020, and March 07, 2019.
– The total number of rejections amounts to thirteen! As a matter of principle, the C. no longer attends any hearings with Judge E. and is appalled by his gloat.
Since the decision of the SC was unappealable pursuant to Sec. 172 (2) SGG, the BF filed a constitutional complaint (A 17) in due time on Sept. 26, 2021. This was not accepted for decision on Dec. 19, 2021 without giving a reason. (A 18)
F. Statement of the alleged violation(s) of the Convention and/or Protocols and relevant arguments
61. Article invoked
Art. 6 para. 1 ECHR
Art. 6 para. 3 c ECHR
Art. 6 para. 3 d ECHR
Explanation
Article 6 (1) ECHR guarantees access to a court and a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
This cannot be guaranteed with simultaneous prosecution of the C. by a judge and his covering ongoing lawsuits with all of them decided negative. A bias will be always present.
Suppression of documents or failure to inquire into the existence of these documents as claimed and presented by the C. undermine “litigants’ confidence in the workings of justice based on the knowledge that they have had the opportunity to express their views on every document in the file (including documents obtained by the court of its own motion: K.S. v. Finland, § 22) (Nideröst-Huber v. Switzerland, 1997, § 29; Pellegrini v. Italy, 2001, § 45 and 46).”
Article 6 (3) (c) ECHR guarantees legal assistance
The continuous denial of access to the files to the C.’s lawyer as well as ignoring her in three cases when the judge communicated primarily with the C. (Pellegrini v. Italy, 2001, § 45 and 46) undermines this guarantee. See also review of SC on Google (“Ein Google- Nutzer”).
The judge’s assertion of an absence of the C.’ daughter’s power of attorney is crude malice toward the C. and his daughter. Even the President of the SC was made aware of the power of attorney by the C.! In this case the C.’s lawyer was unable to respond because she was refused access to the case files.
Article 6 (3) (d) guarantees the production of witnesses and evidence.
Showing indifference to the C.’s proven claim of the existence of essential documents in the court’s files and with the JC in various cases undermines any confidence in the ethics and the moral compass of a judge.
Stipulating that only emails with a qualified electronic signature are acceptable when this is not provided by the JC is a grossly malicious act and Catch 22.
Judge E. further did not follow the request of the C. to have a civil servant of the JC present an affidavit that she had not received three documents from the C. when another civil servant of the JC had confirmed the existence of one document.
Judge E. did also not follow a request by the C. to summon the ex-JC civil servant Jürgen Sonneck who had sent us police by using the false name ‘C. Paucher’ for a sharp interrogation by the C. (see Application 51482/18 – single-judge decision).
Judge E. further denied access to email server logs of the JC. These server logs would prove with 100% certainty that the JC had received three essential documents from the C. All the more, since in one case a JC employee confirmed the existence of a document and based a decision on it.
“Proper participation of the appellant party in the proceedings requires the court, of its own motion, to communicate the documents at its disposal (Kerojärvi v. Finland, 1995, § 42). The mere possibility for the appellant to consult the case file and obtain a copy of it is not, of itself, a sufficient safeguard (Göç v. Turkey [GC], 2002, § 57).” Likewise Mantovanelli v. France, § 33.
G. Compliance with admissibility criteria laid down in Article 35 § 1 of the Convention
63. Complaint
Art. 6 para. 1 ECHR
Art. 6 para. 3 c ECHR
Art. 6 para. 3 d ECHR
Information about remedies used and the date of the final decision
1. Decision of the Munich Social Court of Aug. 25, 2021, ref. S 31 SF 299/21 AB – p. 38 (A 1)
2. Decision of the Federal Constitutional Court of Dec. 19, 2021, ref. 1 BvR 2356/21 – p. 49 (A 18)
Evocatively Ambiguous 