JOANNA DERLATKA
Disqualification of a Judge in Civil Procedure
Summary
A doctoral thesis written
in the Department of Civil Procedure II
under the supervision of
Prof. dr. hab. Andrzej Marciniak
Łódź 2014
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Judicial disqualification plays an important role in civil procedure. It is a procedural
guarantee that implements the idea of a fair trial in view of the parties to the proceedings and
their other participants as well as in its social reception. It also fosters the trust placed in
courts and the judiciary. Interestingly, however, the institution has not been explored in depth
in critical studies. Only fragmentary research into some issues constituting the institution in
its entirety can be found in the literature on the subject. The evolving form of the provisions
relating to judicial disqualification, an ever increasing Polish and European judicature, and
emerging views regarding the importance of judicial impartiality and fairness call for a
detailed investigation of the concept.
The research objective of my study is to conduct a comprehensive analysis of judicial
disqualification in civil procedure. The main focus of the thesis is the institution in its current
form as stipulated in the Code of Civil Procedure. Factors that have shaped normative
regulations concerning disqualification of a judge and have contributed to its amendment are
also examined. The thesis evaluates the practical implementation of the principle and rates the
execution of guarantees and protective functions which it has. It also assesses the efficiency of
the procedure to disqualify a judge. Statements in the legal doctrine regarding judicial
disqualification are surveyed and the position of the judicature, gradually increasing since the
introduction of the 1930 Code of Civil Procedure until the present moment, is analyzed.
Academic and judicial statements on the subject are also evaluated based on the investigations
into judicial disqualification conducted in this thesis. The purpose of this evaluation is to
present my position regarding the functioning of the institution and to formulate conclusions,
including those de lege ferenda, that could be used to enhance the quality of the procedure to
disqualify a judge.
A range of research methods was adopted to address the above objectives. The logicallinguistic method was selected as the main methodological approach applied in the area of
law in legal sciences, and serves to give an overview of the current form of the laws defining
the institution in the Polish Code of Civil Procedure. Based on the method, legal norms and
interpretations of legal provisions were systematized, concepts used by the legislator were
defined, the practice of the implementation of the law was analyzed and directions of
legislative changes, formulated as conclusions de lege ferenda, were proposed.
Secondly, the legal and theoretical method was employed in the thesis. Based on this
method, it was noticed that the institution of judicial disqualification is not only a purely
procedural concept but it also exhibits constitutional features.
The historical method was employed to give an overview of the early development of
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the concept of judicial impartiality in the times of first codifications of the written law.
Sources of formal requirements of impartial legal service were analyzed. The evolution of
Polish procedural provisions regulating judicial disqualification was also presented and
transformations affecting grounds for disqualifying a judge defined by the law were also
investigated.
The comparative (legal and comparative) method was applied to examine the Polish
civil procedure law regulating judicial disqualification. Its underpinning premise is that other
European legislations exert an important influence on the form of judicial disqualification in
the Polish law. Provisions relating to judicial disqualification in France, Germany and Italy
were analyzed to identify the scope of similarities between the grounds for disqualification, as
well as the procedure to disqualify a judge, in those states and in the Polish law. The impact of
European and international standards of impartiality on the Polish legislative practice and
Polish judicature was assessed by using this methodological perspective.
The research material collected in my thesis spans an extensive temporal range and
goes back to considerations of the personal configuration of the judicature beginning with the
period of the Roman law and post-Justinian times, presented in the opinions of legalists and
canonists of the 12th and 13th centuries. Further retrospective studies comprised the period
between the beginning of the modern era and the present moment. While Poland remains the
territorial focus of the investigations performed in the thesis, the analysis, as indicated above,
also encompasses a discussion of the procedural law in France, Germany and Italy.
The thesis consists of seven main chapters. They are preceded by a list of
abbreviations and a preface that includes methodological assumptions. It is followed by final
conclusions and a list of references comprising over 400 literature sources.
The main principles of the judicature, including judicial impartiality and
independence, were outlined in the first part of the thesis. Constitutional and political
provisions as well as ethical standards were analyzed. Assumptions of the contemporary legal
culture that expect a judge to exhibit the level of morality of the highest order were also
examined.
A historical overview of judicial disqualification is given. A specification of traits
required from a judge, a participant in a trial, endorsing a fair resolution of a civil procedure is
listed. Regulations allowing the parties to appeal against the decision issued by an
untrustworthy judge functioned as early as in the Roman per formulas process. Moral
qualifications of a judge, grounds for judicial disqualification and investigation methods of
partiality charges were investigated. Source material dating back to the Middle Ages, the early
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modern period and the period spanning from the late 18th century until the early 20th century
(the three partitions of Poland) was included in the discussion. Special attention was paid to
the analysis of the institution in the 20th century and its evaluation was proposed based on
constitutional and systemic regulations as well as provisions of the former civil procedure.
The discussion of judicial disqualification conducted in my thesis is also comparative.
The thesis examines judicial disqualification in light of the right to a just court trial. The role
of the European Tribunal of Human Rights in the formation of the concept of a fair trial was
stressed. The right to an impartial trial as part of acquis communautaire was also studied. The
right to an impartial trial is believed to be one of the most fundamental aspirations of the
human community. Based on the analysis of judicial disqualification in the judicature of the
European Tribunal of Human Rights, the thesis offers an interpretation of the right to a fair
trial as formulated in the European Convention for the Protection of Human Rights and
Fundamental Freedoms. The Convention is internationally considered to be a constitutional
charter of fundamental rights and freedoms of the member states of the Council of Europe. As
the Roman law was adopted in all the legal systems of the countries in continental Europe, the
French, German and Italian codes of civil procedure were examined as comparative examples
of judicial disqualification.
Judicial disqualification in the Polish Code of Civil Procedure of 1964 is discussed in
the next part of the thesis. It delineates the subjective and objective scopes of disqualification
and presents distinctions between different types of it in the doctrine and in the judicature.
A division of judicial disqualification in the civil procedure in Poland was studied.
Disqualification by virtue of the law itself where a judge is not suitable to decide on a case
(iudex inhabilis, art. 48.1 and 3 and art. 413 of the Code of Civil Procedure) and
disqualification by a court decision where a judge’s impartiality can be open to doubt (iudex
suspectus, art. 49 of the Code of Civil Procedure) are distinguished. A more detailed
classification of judicial disqualification is based on disqualification where the law itself so
requires and disqualification at the request of a party to the proceedings or the judge’s own
motion (recuse). Both iudex inhabilis and iudex suspectus are subject to disqualification from
proceedings pursuant to a procedural decision by a court pursuant to art. 52 of the Code of
Civil Procedure. According to the jurisprudence of the Constitutional Tribunal, statutory
disqualification of a judge should be classified as absolute, that is on an absolute ground.
Grounds defined in art. 49 of the Code of Civil Procedure concern relative disqualification. A
list of absolute reasons to disqualify a judge laid down in the provisions of the Code of Civil
Procedure was considered in detail. The ground for judicial disqualification pursuant to art.
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48.1.6 of the Code of Civil Procedure holds a special place among absolute reasons. Unlike
other reasons, known in principle since the introduction of the Code of Civil Procedure in
1930, this is a novel premise. Further discussion concentrates on numerous challenges to the
practical application of the grounds for disqualification by virtue of the law itself. The
evaluation of this type of disqualification, performed in the context of other procedural
provisions of the Polish legal system and also in light of a variety of differing circumstances,
serves to identify a number of points that require either rectification or consolidation. They
are delineated below.
Judicial disqualification where the law itself so requires is differentiated from
disqualification by a court decision. The provision stipulated in art. 49 of the Code of Civil
Procedure comprising judicial disqualification by a court decision was compared with
provisions regulating relative grounds for disqualification enforceable by other Polish
procedural acts. An explanation of legislative transformations that have recently taken place in
relation to art. 49 of the Code of Civil Procedure is an important part of this discussion. These
changes affect the subjective and objective scopes of relative grounds for judicial
disqualification. The accuracy of previously enforceable concept of a “personal relationship”
as a ground for disqualification is analyzed in the thesis. Persisting numerous practical doubts
concerning the current phrasing of art. 49 of the Code of Civil Procedure are also reviewed.
Art. 49 of the Code of Civil Procedure demands that a motion to disqualify a judge should be
based on the existence of circumstances of such type that they could call into question a
judge’s impartiality in a given case.
Judicial disqualification is of uttermost importance and the need to adjudicate by an
objective judge of high moral and ethical standing is appreciated as a fundamental human
right. Pursuant to the provision of art. 49 of the Code of Civil Procedure, a judge can be
disqualified in situations that compromise judicial impartiality; those, however, cannot be
unambiguously formulated and legally codified as grounds for disqualification. The provision
protects judicial independence and diligence from a variety of circumstances that may
motivate the judicial position illicitly and unlawfully. Regardless of high moral standards and
exceptional personal predisposition, the person of a judge will always be exposed to various
influences. They may impact on a judge’s preferences, beliefs and motivation and, thus, the
content of the decision given in a case. Judges should make every effort to contain and
diminish the influence of the motivation derived from outside of the law on their judicial
performance. The concept of judicial disqualification reinforces this process.
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A range of practical challenges was identified as part of the abuse to caution pursuant
to art. 5 of the Code of Civil Procedure. The right to institute proceedings to disqualify a
judge is considered in this part of the thesis. A procedural distinction is made between judicial
disqualification at the request of the parties to the proceedings and recusal when a judge
stands down voluntarily at his request. A number of duties placed with the judge whose
disqualification is sought by motion or request are considered. Repealed art. 53 of the Code of
Civil Procedure regarding a motion to disqualify a judge in bad faith is also discussed. The
article was used to offer a consideration of practical and doctrinal issues when the right to file
a motion to disqualify a judge is abused. Procedural provisions regulating filing a motion to
disqualify a judge (and previously a manifestly groundless motion) are a reaction to the
obstructive procedural action of the parties. However, they raise several doubts and require
both an academic reflection and appropriate conclusions de lege ferenda.
The course of the procedure to disqualify a judge is discussed in the next part of the
thesis. Key terms that are analyzed and interpreted are “the court in which the case is
pending” and a “superior court”. Topics in decisions given in procedures to disqualify a judge
are an important part of this discussion. Especially interesting is the right to appeal against
decisions concluding a procedure to disqualify a judge. This point was developed by
distinguishing the right of appeal against decisions given by courts of first and second
instances. The aim of this was to provide critical insight into the institution of the horizontal
right of appeal against decisions given in procedures to disqualify a judge. The introduction of
a horizontal complaint against a decision to dismiss a motion to disqualify a judge given by a
second-instance court was a necessary move. The symmetry of the right to appeal against
motions to disqualify a judge given by courts of both instances for the first time is postulated
by the Constitutional Tribunal. An examination of the consequences of non-disqualification of
a judge closes the substantive part of the thesis.
A range of important conclusions and numerous observations emerges from the
considerations presented in the thesis. Polish civil procedure attempts to ensure constitutional
and fundamental principles of the judicature, including the right to a trial, by regulating the
institution of judicial disqualification. In their current legal form, procedural norms are a
guarantee of the right to an unbiased civil procedure, protecting citizens from its arbitrariness.
By this, procedural norms also prevent the abuse of a judge’s discretionary power. However,
the legislator should affirm a judge’s impartiality also in the constitution alongside procedural
provisions currently in force. A reliable position of the judicature should be reinforced with
constitutional guarantees of a judge’s impartiality.
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As mentioned above, while judicial disqualification is regulated by a procedural act, it
also bears constitutional features. The analysis conducted in this thesis corroborates this. For
instance, art. 531 of the Code of Civil Procedure stipulates that a court considering a case is
the court that dismisses a reapplication of the motion to disqualify a judge based on the same
circumstances. The designation of the court prescribed by the article is a contentious doctrinal
issue. The court referred to in the article should be understood in constitutional terms. This
interpretation suggests that a decision to dismiss a motion to disqualify a judge is given by a
court in which the case is heard. It is the court competent to decide on judicial disqualification
pursuant to art. 52 of the Code of Civil Procedure. In order to remove interpretative
uncertainty regarding art. 531 of the Code of Civil Procedure, an unambiguous reference to
the court referred to in art 52.2 of the Code of Civil Procedure can be introduced to the
provision. It should be stressed that art. 52 of the Code of Civil Procedure is also of
constitutional nature, and not procedural, as it is accepted that a decision of a superior court in
a case of judicial disqualification is not a procedural decision but a decision of organizational
and administrative nature.
It should be underlined that the court which considers a motion to disqualify a judge
decides whether the circumstances stipulated in the motion actually compromise values such
as a fair trial or judicial impartiality. Importantly, these concepts are not defined in the law.
While this loophole is enlightened by the judicature of the Supreme Court and the
Constitutional Tribunal, an important role is played by the work of the European Tribunal of
Human Rights. Definitions of a fair trial, independent and impartial court and the right to a
trial are some of the greatest achievements of the Tribunal. The Polish judiciary often relies
on the understanding of these concepts accepted by the European Tribunal of Human Rights.
The Tribunal has also contributed to an expansion of the standard of independence of judicial
bodies. It demands that courts should be fully independent and objective institutions. The
influence of the judicature of the European Tribunal of Human Rights on the application of
the law by national courts has also been growing.
The exploration of judicial disqualification carried out in my thesis shows that the
institution is not free from controversy. The constitutional nature of judicial disqualification is
one of the sources of contention. Other concerns mentioned above can be divided into three
main groups. Firstly, the shape of absolute grounds for judicial disqualification (art. 48 Code
of Civil Procedure) is open to discussion. Secondly, some irregularities can be discerned in
the procedure to file a motion to disqualify a judge in its current form. Thirdly, the definition
of the legal nature of a complaint against a decision of a second-court instance to dismiss a
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motion to disqualify a judge also raises some doubts.
Art. 48.1 of the Code of Civil Procedure contains an essential catalogue of absolute
grounds for judicial disqualification. Its correct interpretation is of fundamental importance.
The grounds referred to in the article trigger judicial disqualification regardless of whether
they actually threaten a judge’s impartiality. Therefore, a strict interpretation, free from any
analogy, is necessary. Similarly, it can be assumed that it is not desired to expand a closed list
of these grounds. Some absolute grounds for judicial disqualification, however, should be
specified in greater detail and legislative intervention may be needed in certain cases.
Pursuant to 48.1.1 of the Code of Civil Procedure, judicial disqualification should only
take place when the result of a case heard by a judge directly influences his rights and duties.
To accept an opposite view, that is of admissible indirect influence, is to trigger excessively
restrictive consequences as there is an “automatic connection” between the occurrence of an
absolute ground for judicial disqualification and its consequences in the form of
disqualification. It is therefore not appropriate that a judge should be subject to
disqualification by virtue of the law itself while the result of the case impacts on the rights and
duties of the judge only slightly and indirectly. Indirect threats to judicial impartiality are
eliminated pursuant to art. 49 of the Code of Civil Procedure.
Furthermore, it should be postulated that cohabitation be included in the grounds for
judicial disqualification laid down in art. 48.1.2 of the Code of Civil Procedure. This is a
necessary modification which has been considered in legislative work before. The addition
should be introduced despite the problems that the act amending this encountered in
parliamentary committees. Increased cohabitation rather than marriage in social practice
supports this proposal. A historical evaluation of the provisions of the Code of Civil
Procedure also underpins this change. As demonstrated in the thesis, as early as in the 19th
century, so-called negative conditions of holding a judicial office were predicated on a
prohibition to hear a case regarding the person to whom the judge was engaged.
Contemporary penal procedure referred to in art. 40.1.2 of the Code of Penal Procedure
stipulates that a judge is disqualified by virtue of the law itself if he cohabits with, inter alia, a
party to the proceedings. A similar regulation should be introduced in art. 48.1.2 of the Code
of Civil Procedure. In art. 48.2 of the Code of Civil Procedure, the legislator should envisage
the stability of the grounds for judicial disqualification also after the cohabitation justifying
them has terminated. While this is not aimed at consolidating the grounds for disqualification
across all judicial procedures, it is well-grounded in this case.
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The provision referred to in art. 48.1.4 of the Code of Civil Procedure raises further
objections. While a judge who was or still is a representative of a party to the proceedings is
disqualified, disqualification of a judge who was a legal trainee to a party is problematic. A
legal trainee is not a representative of a party but a substitute of the representative. A trainee
cannot be treated as a further representative as pursuant to art. 91.3 of the Code of Civil
Procedure only an attorney or a legal adviser can be a further representative. It cannot be
accepted that a trainee can be a substitute representative pursuant to the corporate law while
only an attorney or a legal adviser can serve this function pursuant to procedural laws. The
legal position of legal trainees should be consolidated both in corporate acts and procedural
acts. Disqualification of a judge who was a legal trainee to one of the parties to the
proceedings should be considered because the same arguments support judicial
disqualification of a professional representative and a trainee substituting him. In order to
rectify it, art. 91.3 of the Code of Civil Procedure should be amended to grant further
representation not only to attorneys and legal advisers but also to their substitutes, that is legal
trainees.
Provisions of art. 48.1.4 of the Code of Civil Procedure regulate judicial
disqualification where a judge has served as a legal adviser to one of the parties. The narrow
scope of professional legal service, defined by the legislator only as legal advice, is open to
questions. A different approach should be taken by art. 48.1.4 of the Code of Civil Procedure
to expand the concept of a “legal adviser”. However, an analogy should not be used to achieve
this aim. The equal status of a legal adviser and other bodies providing counsel to the party
could be permitted if a loophole existed in art. 48.1.4 of the Code of Civil Procedure. This,
however, is controversial due to a closed catalogue of the grounds for judicial disqualification
by virtue of the law itself. Similarly, the term “legal adviser” cannot be interpreted as all
subjects providing legal service to a party to the proceedings. The admissibility of an
interpretation expanding the provisions of art. 48.1.4 of the Code of Civil Procedure is
contentious due to the fact that this provision is an exception.
To resolve this problem, judicial disqualification in civil proceedings should be
introduced where a judge has provided legal service to a party to the proceedings. It seems
that the legislator wished to achieve this while formulating art. 48.1.4 of the Code of Civil
Procedure. The above modification can be introduced in two ways. Firstly, the provision
referred to in art. 48.1.4 of the Code of Civil Procedure can be amended and the phrase “was a
legal adviser to one of the parties” can be replaced by the phrase “provided legal services to
one of the parties”. The second way is related to the grounds for judicial disqualification in
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court and administrative proceedings. Art. 48.1.4 of the Code of Civil Procedure could be
revised to refer only to cases in which the judge was or still is a representative of one of the
parties. Secondly, it would be recommended to introduce art. 48.1.41 to the Code of Civil
Procedure. Pursuant to the article, a judge would be disqualified by virtue of the law itself
where he has provided legal services to one of the parties.
Judicial disqualification where a judge has conducted mediation is not regulated in
civil procedure. Mediation in civil procedure is sometimes considered to be “a judge’s
participation in giving a decision subjected to review”. Based on this classification of
mediation, a judge could be disqualified pursuant to art. 48.1.5 of the Code of Civil
Procedure. However, it should be accepted that conducting mediation proceedings does not
constitute grounds for “participating in giving a decision subjected to review” which is
referred to in the provision. At present, previous mediation conducted by a judge may be
challenged by judicial disqualification motions pursuant to art. 49 of the Code of Civil
Procedure. It should be stressed that mediation cannot be provided by a professional acting as
a judge in civil procedure (art. 1832.2 of the Code of Civil Procedure.) and penal procedure
(art. 23a.3 of the Code of Penal Procedure). Pursuant to art. 40.1.10 of the Code of Penal
Procedure, the legislator chose to categorize mediation as an absolute ground for judicial
disqualification. Previous provision of mediation by a judge highly threatens his impartiality
and judicial disqualification by virtue of the law itself is well-founded in this case. The
catalogue of absolute grounds for judicial disqualification in civil procedure could be
supplemented to include situations where he has performed mediation.
Filing a motion to disqualify a judge also appears to be a complex issue that raises
interpretative concerns. For instance, pursuant to art. 50 of the Code of Civil Procedure a
party should file a motion to disqualify a judge prior to the case being opened. Once a case
has opened, a motion can be filed only if the ground for judicial disqualification arose or
became known to the party after the start of the case. The definition of the time frame when a
party can file a motion to disqualify a judge after the case has opened is problematic and the
legislator did not clear it. Only an additional duty to substantiate the circumstances justifying
filing the motion after the case has opened is placed on the party. A potential strategic use of
judicial disqualification motions afforded by this construct is considerable as it is possible to
file a motion at any time after the case has opened. This often allows the parties to stall the
proceedings which disorganizes their development, infringes upon the constitutional right of
the other party to decide on a case without unreasonable delay and is incompatible with the
dignity of the court.
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In order to prevent this from taking place, the introduction of a statutory time limit to
file a motion to disqualify a judge after a case has opened could be proposed. A motion to
disqualify a judge after a case has opened could be lodged within a week from the moment the
circumstances arose or a party became aware of them. At the same time, pursuant to art. 50.2
of the Code of Civil Procedure, the party would be obligated in the motion to substantiate the
circumstances justifying the motion. The introduction of a time limit to file later motions to
disqualify a judge can encourage a sense of discipline on the parties while acting on their
procedural rights.
Remedies that counteract the abuse of judicial disqualification deserve approval in
principle as legal provisions laying down the right to file a motion to disqualify a judge are
regulated quite broadly. Those provisions that constrain this right excessively have been
repealed. Art. 53 of the Code of Civil Procedure placing financial repressive punishment for
lodging a motion for judicial disqualification in bad faith has been revoked. The hypothesis of
art. 531 of the Code of Civil Procedure has been narrowed down considerably. A procedural
repressive punishment to dismiss motions manifestly groundless has been removed. The
current legal status may encourage the abuse of judicial disqualification. At present, any
motion to disqualify a judge, even manifestly groundless, is subject to consideration. If a
motion to disqualify a judge is dismissed, the party can file a complaint against the dismissal
in both instances.
The doctrine is not unanimous whether a re-lodged motion for judicial disqualification
could be considered by the judge whose disqualification is sought in the motion. According to
some views, such motion should be considered by the judge who is charged with prejudice if
the circumstances indicate that the motion constitutes a gross abuse of procedural rights by
the party. Such remedies would undoubtedly make the consideration of motions used by the
parties to obstruct the course of justice more efficient. However, it may be problematic to
determine whether a motion to disqualify a judge constitutes a gross abuse of procedural
rights. To consider a motion to disqualify a judge by the judge whose disqualification is
sought in extreme situations, as a measure opposing gross abuse of procedural rights, is
controversial as it creates an area of dangerous automatic admission of motions to disqualify a
judge as meeting criteria of evident inadmissibility. Demands to transfer regulations
permitting a motion for disqualification to be considered by the judge charged with partiality
onto the ground of the Code of Civil Procedure should definitely be rejected.
The third category of contentions regarding judicial disqualification relates to the 2011
amendment to the Code of Civil Procedure. The amendment introduced the right of appeal
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against a decision to dismiss a judicial disqualification motion given by a court of second
instance. The absence of a mechanism of complaint against such decision was a serious
negligence, often highlighted in the doctrine and in the judicature. It was unacceptable that the
right of appeal against a motion to disqualify a judge was made dependent on the instance of
the court in which the proceedings were pending. The lack of a regulative apparatus
controlling such decisions of second-instance courts was inconsistent with the constitutional
right to a trial. Furthermore, the amendment must have a strict interpretation. In light of art.
3942 of the Code of Civil Procedure, the right of appeal does not cover decisions given by a
second-instance court in cases of complaints against a decision by a first-instance court where
a judicial disqualification motion was dismissed. As determined by the legislator, an appeal
can be lodged only against those decisions given by a second-instance court to dismiss a
motion that were heard by a second-instance court for the first time.
An appropriate classification of a complaint, regulated in art. 3942 of the Code of Civil
Procedure, is controversial in the context of the right of appeal against decisions of a secondinstance court. It should be treated as other legal remedy referred to in art. 363.1 of the Code
of Civil Procedure as such complaint, unlike a complaint against a decision of a first-instance
court to dismiss a motion to disqualify a judge, it is not characterized by down transference. It
is a so-called horizontal complaint. It is considered by a judicial panel of second instance
different from the panel that gave the challenged decision. The manner in which the complaint
is considered cannot be treated as a “horizontal instance”. “A different panel of the same
court” does not have anything to do with the principle of the right of appeal. The
consideration of a horizontal complaint was deprived of down transference and, by this,
breaks away from the principle of the right of appeal.
Consequences of hearing a case by a judge who may be biased and subject to
disqualification should also be analyzed. Proceedings can be declared invalid only if a judge
participating in the proceedings is subject to disqualification where the law itself so requires.
The charge of invalidity can be invoked as the ground for ordinary remedies at law as well as
extraordinary remedies at law once the decision becomes final. Invalidity of proceedings is,
however, defined differently in appeal proceedings (art. 379.4 of the Code of Civil Procedure)
and in proceedings pursuant to a petition to revive the proceedings (art. 401.1 of the Code of
Civil Procedure). According to the former, invalidity is caused by the participation in
considering a case of a judge disqualified where the law itself so required. The latter allows
the proceedings to resume due to invalidity when a judge disqualified by virtue of the law
itself “ruled” in the case and the party could not seek disqualification before the decision
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became final. The concepts “to participate in considering a case” and “ruling in a case” are
different. A petition to revive the proceedings is possible only when the reason for
disqualifying a judge where the law itself so requires existed already when the decision
became final. What both proceedings have in common is the fact that the charge of invalidity
is justified even when a judge subject to disqualification by virtue of the law gave an impartial
decision because invalidity itself takes place as provisions regarding judicial disqualification
by virtue of the law itself are infringed upon.
Judicial disqualification which is the focus of this doctoral thesis is an important
guarantee of judicial independence and plays an important role in the judicial process. On the
one hand, it assures an unbiased trial and fosters public confidence in the judiciary. On the
other hand, it allows a judge to step down from considering matters in which he has interest
that undermines his impartiality. Judicial disqualification should obviously be sought only
when it is necessary and its abuse should be viewed highly critically. The right to disqualify a
judge cannot be used strategically to obstruct the course of justice and it is not an absolute
right.
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