When can a judge be challenged for bias?

Chapters of the article

• Mere presumption is not enough
• Relation to the case or to the parties
• Don’t wait for bias to show
• Bias alleged by the judge
• How to plead bias?
• Systemic bias

Mere presumption is not enough

Does it seem to you that the judge is “favoring” the other side of the case and is somehow unfair to you? Before you start arguing that he is biased, try to think whether the other side is simply not doing the right thing, or whether it seems to you. Alternatively, consult a lawyer about the whole matter.

It is not enough to argue that a judge is biased merely because you feel or believe that he or she is biased, but there should be objective facts that give you reason to doubt that he or she is not biased.

Similarly, the Constitutional Court has also stated in its ruling that “A party to proceedings who raises an objection to the bias of a judge must state the specific facts for which he considers that the judge is disqualified from hearing and deciding the case.” “[…] reasonable doubts about the judge’s impartiality are a category of an objective nature and as such must be based on facts contradicting the objectivity of the judge’s decision-making, so much so that they shake the constitutionally protected impartiality of the judge’s decision-making, not from the perspective of the parties to the proceedings, but in an objectivesense.”

In other words, merely “feeling bad about a judge” will certainly not be recognized as a legitimate reason for replacing him. According to the Code of Civil Procedure, circumstances which consist of the judge’s conduct in the proceedings or his or her decision-making in other matters cannot be grounds for removing a judge. Moreover, it is necessary to accept the strong principle, enshrined directly in the Charter of Fundamental Rights and Freedoms, that ‘no one may be deprived of his lawful judge’. This is above all a safeguard against interference with the jurisdiction of the court and the system of allocation of cases in the court. The substantive and local jurisdiction of the court is determined directly by law, and the allocation of cases to individual judges within the court follows pre-determined rules. This minimises the possibility of influence.

Relation to the subject matter or to the parties

What, then, according to the Code of Civil Procedure can be a ground of partiality? Judges are disqualified from hearing and deciding a case if, having regard to their relationship to the case, to the parties or to their representatives, there is reason to doubt their impartiality.

A situation in which the judge assigned to the case may have a particular relationship to the case he or she is deciding may arise, for example, where he or she has a direct legal interest in the case. This is undoubtedly the case whenever the judge would be at the same time a plaintiff or a defendant or an intervener, and also when he or she would be a witness in the case.

More often, we encounter the situation where there is a certain relationship with the parties or their representatives. The relationship may be familial, friendly or hostile. Thus, it is certainly not appropriate for a judge to decide on the damages of his sister, the divorce of his best friend or the debt of a man who has taken over his wife, however much he may be convinced that this fact will not affect his judgment. This may also be due to a relationship of economic dependence, where, for example, the judge is lecturing for an institution that is a party to the proceedings.

In deciding on an objection, the nature of the relationship and whether it is likely to affect the judge’s impartiality shall be assessed individually. For example, the mere fact that a judge has studied with a lawyer of one of the parties in the same year at law school and therefore knows each other (rather by sight) is certainly not a ground for disqualification.

Don’t wait for bias to manifest itself

On the one hand, although we have stated above that it is not good to be swayed by one’s assumptions, as these alone are not sufficient to raise an objection, on the other hand, it is not necessary to wait to see whether the alleged bias will manifest itself in the final decision. If you have serious doubts, raise them immediately. Not like our client Marianna, who approached us with the possibility of raising an objection of bias in connection with an appeal against a first instance decision.

It is hypothetically possible to raise a plea of bias at the time of appeal, but the requirements of the law must be met. The law states that:

• A party is obliged to raise a plea of bias against a judge no later than at the first hearing attended by the judge whose disqualification is sought.
• If the party was not aware of the ground for disqualification at that time or if the ground arose later, he may raise the objection within 15 days after he became aware of it.

You will probably not convince anyone that you did not realise that the judge was your ex-partner and only remembered it on appeal. On the other hand, the fact that the opposing party and the judge are former classmates and good friends could well have been disclosed to you only when your case was long in process and the first hearing had already taken place.

• Later on, a party can only raise a plea of bias if he has not been advised by the court of his right to comment on the persons of the judges (presiding judges).

Thus, in the case of the client in question, it was too late to raise an objection, since she had been aware of the fact from the outset and had been duly informed of the possibility of raising an objection.

Bias alleged by the judge

If there is a relationship between the judge and the parties to the case, it is not usually necessary to wait for one of the parties to raise an objection of bias, but the judge himself may also inform the parties of the bias. According to the law, he or she should immediately notify the President of the court of that fact. In the meantime, only acts which cannot be delayed may be taken in the proceedings. The president of the court shall appoint (if the grounds of bias are recognised) another judge according to the work schedule.

Thus, for example, if a judge discovers that the lawyer for one of the parties is her ex-husband, with whom they are not on the best of terms, it is appropriate to report this fact and not wait for the ex-husband or the opposing party to notice the same.

How to raise a plea of bias?

As stated above, the time for raising an objection is limited (with exceptions) to the first hearing in the proceedings. Please include in your objection:

• which judge you are objecting to (name and court),
• the reason for the objection (the judge and the defendant are good friends),
• when and how you became aware of it (this is particularly important if you object later than the first hearing),
• what can be used to prove the allegation.

The superior court in the chamber will decide whether the judge or the presiding judge is disqualified. The disqualification of Supreme Court judges is decided by another chamber of the same court. If a judge is excluded, the President of the Court shall appoint another judge to hear and determine the case in accordance with the timetable.

Systemic bias

The notion of systemic bias is more often encountered in administrative rather than judicial proceedings. Systemic bias means that all the officials, i.e. the officials of a certain body who decide on a case (by analogy, theoretically all the judges of a court) have a certain relationship to the case or the parties. In the case of administrative proceedings, this may be the case where an official of a municipal authority decides on a matter in which the municipality has a significant interest.

In the judicial environment, such an objection is hardly encountered; one can hypothetically imagine a situation where, for example, the president of the court in question would be a party and logically they could then be considered biased. On the other hand, in the case before us, where bias was alleged because one of the parties was another judge of the district court in question, the superior court did not find any possible bias.