BGH: Even an independent judge cannot go to work immediately
Karlsruhe (jur). Mothers cannot choose whether to continue working immediately after the birth of their child. According to the statutory maternity protection periods, an "absolute ban on services" applies - and without exception, judged on Monday, November 7, 2016, the Federal Court of Justice (BGH) in Karlsruhe (file number: 2 StR 9/15). In doing so, he declared the staffing of the judge's bench to be faulty in criminal proceedings because a judge on maternity leave had been involved in the pronouncement of the judgment.
Specifically, it was about criminal proceedings before the Darmstadt Regional Court. A judge became pregnant during the main 20-month trial of the alleged offender. A supplementary judge, should the judge fail, had not been brought in for the main hearing.
When the trial for the Christmas holidays was interrupted in 2013, the judge gave birth to her child. Negotiations continued at the beginning of the new year.
The defendant's lawyer found that the judge's waistline did not increase any more, but decreased significantly and the pregnant woman had apparently given birth to her child in the meantime. The lawyer therefore complained that the judge's bench was incorrectly staffed. The legal maternity protection periods would also apply to the judge. According to this, mothers are not allowed to work for up to eight weeks and in the case of multiple pregnancies and premature babies up to twelve weeks after the birth of the child.
The district court rejected the occupation objection. The judge colleague continued to voluntarily participate in the main hearing. Due to her judicial independence, she is free to exercise the judicial office during the period of statutory maternity leave.
However, the BGH ruled that the judge's bench had actually been incorrectly staffed in the criminal proceedings. The entire main trial must therefore be repeated.
The Maternity Protection Act provides for an "absolute ban on services". It is not at the discretion of the judge whether she makes use of statutory maternity protection or not - even if the judge's office is independent. The legal provisions just wanted to prevent mothers from coming under pressure to decide to go back to work immediately after childbirth. fle / mwo