Exclusion of a judge in civil proceedings - in which cases?


The article will indicate whether a judge can conduct any case in civil proceedings. On the basis of many examples, it will be possible to find out when a judge will not be able to obligatorily judge a given case, and also whether, if there are no grounds for excluding him by operation of law, one can try to submit such an application and what are the premises for a positive decision. So let's check when it is possible to exclude a judge in civil proceedings.

Legal basis for the exclusion of a judge

Information on the institution of exclusion of a judge can be found in Part I of Part III of the Code of Civil Procedure. It contains provisions on the obligatory exclusion of a judge (under the Act), as well as exclusions at the request of the judge himself or a party to a trial, and information about the adjudicating person.

Exclusion of a judge in civil proceedings by law, including examples

The Code of Civil Procedure in Art. 48 indicates the obligatory premises that exclude a judge, by virtue of the law, from participating in the case. As judges are currently automatically drawn for cases in courts, it may happen that a judge who should be obligatorily excluded becomes the judge in charge of the case. In such a situation, however, he is immediately removed from it.

The judge is disabled if:

  • He is a party to or remains in such a legal relationship with one of the parties that the outcome of the case affects his rights or obligations.

Example 1.

Jan Nowak lent his neighbor PLN 5,000, but the neighbor, after the agreed return date, did not return the money to him. Jan Nowak has therefore filed a suit with the court, and at the same time it is a court in which he is a judge. After the draw performed by the system, it turned out that the judging judge was to be Jan Nowak. In this case, it will be excluded by law.

  • The case concerns his spouse, relatives or relatives in a straight line, side relatives up to the fourth degree and lateral relatives up to the second degree.

Example 2.

Judge Jan Nowak may not conduct a case in which the plaintiff, defendant, applicant or participant is his wife, brother, parents, sister-in-law, uncle, nephew and other relatives and relatives, up to the degree indicated in the Act. Jan Nowak will also be excluded when the case concerns his ex-spouse.

  • The case concerns persons related to him by virtue of adoption, custody or guardianship.

Example 3.

Judge Jan Nowak cannot conduct the case of his adoptive parents, adoptive children or, for example, his completely incapacitated sister, of whom he is a guardian. It will also be excluded when the relationship of adoption, guardianship or guardianship has ceased.

  • He was or still is an attorney or was a legal advisor of one of the parties.

Example 4.

Jan Nowak started his activity as a legal advisor. At the end of her professional career, he advised Maria Kowalska on the division of joint property; the matter was confusing. After 2 years, he ended his activity as a legal advisor, he became a judge, and his first case was the one he received due to the retirement of another judge. It concerned the division of the joint property in which the applicant was Maria Kowalska. In such a case, Jan Nowak is exempt from conducting this case by virtue of the law.

  • He participated in the issuing of the judgment under appeal in a lower instance, he participated in the preparation of a legal act which was valid or examined by him, and in cases in which he acted as a prosecutor.

Example 5.

Judge Jan Nowak was promoted from the District Court to the District Court. He heard the case, which was then appealed against. Due to the fact that the examination time of the appeal is long - even more than 1 year, this judge has already obtained a promotion and moved to the District Court, where he was selected to conduct the case after filing the appeal (especially if there was an application for release on the fee, the recognition of which also takes time). From this point, Art. 48 of the Code of Civil Procedure, a judge is excluded from recognizing it.

  • He took part in issuing a ruling, which is the subject of a case for compensation for damage caused by issuing a legally valid and unlawful ruling.
  • He participated in the issuance of a judgment covered by a complaint for renewal or an extraordinary complaint.

It is a closed catalog, there are no other reasons which exclude a judge from the law. The judge should notify the court that these conditions are met.

Disqualification of a judge in civil proceedings upon request

In addition to the above-mentioned conditions, the court excludes a judge:

  • at his request;

  • at the request of the party

if there is a circumstance that could cause reasonable doubt as to the judge's impartiality in a given case.

The grounds for exclusion may be emotional relationships (friendship, liking, aversion, hatred), but also personal economic ties, e.g. property, credit ties. An example is the friendship between the judge and the defendant, who meet regularly and often and have known each other for a long time.

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Against the background of the current legal status, the judicature (judicature of courts) assumed that only business relations or official contacts of a judge with other persons are not personal relations and do not constitute grounds for excluding a judge. However, it cannot be ruled out that the judge's contacts with an employee or official will result in his exclusion, if they are not only of a professional character, but also personal - regardless of whether it is friendship or undisguised reluctance.

The application is submitted in writing or orally for the record of the hearing. It must contain a substantiation of the reasons for the exclusion of the judge.

Who recognizes the application for the exclusion of a judge in civil proceedings?

The exclusion of a judge is decided by the court in which the case is pending, and if that court is unable to issue a decision due to the lack of a sufficient number of judges - the superior court.

The court is composed of three professional judges. If the case concerns a small court in terms of personal composition, in which there are three judges in a civil division, then that court may not issue the decision in question. The application is then examined by the superior court - the regional court is the district court, the appellate court is the regional court, and the Supreme Court is the appellate court.

The issuance of the decision is preceded by the submission of explanations by the judge concerned by the motion. The deadline for their submission is two weeks from the date of receipt of the application by the competent court (or the one in which the judge or the superior court decides). If the judge does not provide explanations within this period, the application is examined without submitting them, unless the court deems it necessary.

Consequences of exclusion of a judge - what activities may a judge undertake until the application for his exclusion is examined?

If the court's decision grants the application for the exclusion of a judge to be granted, the proceedings are abolished to the extent that the judge participated in it after the request was submitted.

This does not apply to urgent measures, such as taking evidence from the testimony of a witness who would, for example, go abroad the next day for a longer period or permanently.

Until the application for the exclusion of a judge is resolved:

  • the judge to whom the motion relates may take further steps, however, no judgment or order concluding the proceedings in the case may be issued. The case may not be terminated during the examination of the motion to exclude a judge.

Changes in the institution of exclusion of a judge introduced by the amendment to the Code of Civil Procedure, which entered into force on November 7, 2019

The amendment to the Code of Civil Procedure did not provide for any new premises that would justify the exclusion of a judge under the Act. The reasons indicated in the article remain unchanged.

The amendment only concerned the situation of exclusion of a judge upon request, where it was clarified that a circumstance that could raise a reasonable doubt as to the judge's impartiality in a given case is not considered to be the judge's expression of a view on the law and facts when explaining to the parties the actions of the court or persuading them to reach a settlement .

It should be pointed out that the judicature developed such a position in the course of proceedings for the exclusion of a judge and it is a well-established view. However, the legislator decided to indicate it directly, in the provision, in order to limit the submission of applications on this basis, in order to improve the handling of cases and shorten the duration of proceedings.