17.12.2021 Litigation and arbitration

Disqualification of a judge


The possibility of filing a motion to disqualify a judge constitutes a fundamental right of the parties to a proceeding to guarantee their right to a fair trial and impartiality of the adjudicating panel.

In accordance with Art. 49 of the Civil Procedure Code (CPC), the court shall disqualify a judge on the party’s motion if there are circumstances which could give rise to a reasonable apprehension that the judge would not be impartial in the case he hears. From the literal wording of this provision, it seems obvious that a motion to disqualify a judge may be submitted without any restrictions by any person being a party to civil proceedings. In practice, however, the filing of an effective motion to disqualify a judge is a complicated matter.

Rules governing the motion to disqualify a judge

Although the filing of motion for disqualification of a judge is not particularly hedged with formalities, there are several important rules in this procedure that should be followed.

The formal requirements governing the filing of motion for disqualification of a judge resulting directly from the provisions of the Civil Procedure Code are as follows: the applicant should state in the motion the grounds for disqualification, and if the case is pending – also substantiate that the ground for disqualification arose or became known to it after joining the hearing. Moreover, if a motion is filed in writing, it must meet all the obligatory formal requirements of a pleading.

Requirement to identify a judge

Less obvious, as not resulting from the literal wording of the provisions regulating the disqualification of a judge, but from the case law, is the requirement to state in the motion the name and surname of a judge whose disqualification the party is seeking. Therefore, it is not sufficient to indicate the function performed by a given judge or to describe in detail personal characteristics of a judge.

The issue becomes a bit more complicated when the motion concerns more than one judge (usually the entire bench or all judges adjudicating in a given court). In such a case, the applicant cannot merely indicate names and surnames of each judge separately, but must also indicate individual grounds for disqualification of each of them.

An additional formal requirement appears when a motion is filed for disqualification of all judges of an appellate court, which is subject to examination by the Supreme Court, and therefore must be submitted by an advocate or an attorney-at-law.

Failure to fulfil formal requirements

The main consequence of defects or inaccuracies in the motion is that they prevent the motion to take the right course, what means that there are grounds for initiating the so-called remedial proceedings. In such a case, the presiding judge will request the party, under pain of returning the motion, to amend or supplement it within a week. It should be emphasized only after filing an effective, or free from formal defects, motion for disqualification of a judge, the judge becomes iudex suspectus.

Another decision of the court with regard to a defectively submitted motion for disqualification of a judge may be dismissal of a motion, which could take place in two instances:

  • if the motion for disqualification of a judge is re-filed based on the same circumstances;
  • or based only on the circumstances related to the court’s decision on evidence.

Circumstances justifying the disqualification of a judge

It should be presumed that a sufficient ground for the motion to disqualify a judge is a justified belief of a party that the judge will not be impartial in a given case. However, the party’s subjective feeling not substantiated by any specific facts indicating a threat to the judge’s impartiality in the case he tries, will be insufficient. For the motion to disqualify a judge to be effective, the circumstances raised by the party should objectively affect the judge’s impartiality, which means that assessments of the parties that are not supported by facts or would in an unauthorized manner deprive the judge of the possibility to resolve the case assigned to him, should not be taken into consideration.

The law makers did not provide an exhaustive list of the circumstances justifying the disqualification of a judge. Thus, I can only attempt to present some examples of situations that usually evidently pose a threat to impartiality of a judge and justify his disqualification under Art. 49 CPC, and these, without limitation, are:

  • a personal, social, business or friendly relationship existing between a judge and a party or a relationship of a judge’s spouse – a professional counsel with the parties, or related to the judge’s emotional attitude to a specific category of cases, if only because of the judge’s personal harm or aversion,
  • a judge showing a negative attitude towards a party by, for example, contemptuously commenting on the quality of the party’s pleadings,
  • employment by a party (usually a company) of a member of an immediate family of the judge,
  • expressing an opinion on an unresolved case in the media,
  • persistent dismissal of questions from a party or its representative to a witness or expert,
  • a situation in which a relative of the judge would appear as a witness,
  • a situation where a judge maintains regular professional contact with a party,
  • a judge providing the party with free or paid legal assistance – the reason for disqualification is a mere opportunity for the judge to form a view on the matter in which he would help the party (even if pro bono);
  • a situation where a judge, outside the trial and his official duties, becomes acquainted with the circumstances of the case being examined.

Circumstances that will not justify the disqualification of a judge

On the other hand, situations that will not justify the disqualification of a judge will primarily include:

  • accusation that a judge conducts a trial in breach of substantive or procedural law, or has been relatively sluggish, i.e. in such a way that leads to a claim that the party’s right to have its case heard within a reasonable time – this results from the possibility to rectify the judge’s actions or omissions under the available remedies at law,
  • prior conduct of another case of the party to the pending proceedings, regardless of the subjective feelings of that party as to accuracy of the previous decision,
  • prior submission by a party of motions for disqualification of a judge in previous cases of that party (before the same panel of judges).

Disciplinary responsibility of a judge

Pursuant to the Act on the Organization of Common Courts of 27 July 2001, a judge takes disciplinary responsibility for misconduct in service including a clear and gross violation of the provisions of law, acts or omissions that may prevent or significantly impede the administration of justice and for offending the dignity of the judicial office. The case law of the disciplinary court rightly argues that a disciplinary offense subject to penalty, depending on the circumstances, may be the judge’s failure to disqualify himself and continue to conduct the proceedings, despite fulfilling the conditions for disqualification under the provisions of the Civil Procedure Code. In the event of a misconduct, a judge committing a disciplinary tort may be subject to the following disciplinary penalties:

  • an admonition,
  • a reprimand,
  • a salary reduction,
  • a fine, or even
  • a dismissal from the function held,
  • a transfer to another place of service,
  • a dismissal from the office.

The amount and type of penalty each time depends on the facts of the case, and in particular on the degree of judge’s guilt.

Admissibility to disqualify an arbitrator

A party may also seek disqualification of an arbitrator examining its case in the arbitration court for similar reasons as of a judge. This is to ensure the impartiality and independence of an arbitrator from the parties. Unlike in civil court proceedings, an arbitrator may also be disqualified if he or she does not have the qualifications specified in the parties’ agreement. A significant limitation in relation to procedure under Art. 49 CPC, is that disqualification of an arbitrator (whom a party appointed or in the appointment of which a party participated) may be demanded only for reasons which the party became aware of after the arbitrator’s appointment.

Author:

Paweł Góra,
Legal Adviser
TGC Corporate Lawyers

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