Impartiality and Independence of Judges in Legal Proceedings

Posted on Dec 2, 2024 in Law & Jurisprudence

Preserving Impartiality

The legitimacy of a judge in any legal process hinges on their impartiality and lack of connection to the involved parties or the subject of the proceedings. Two key safeguards ensure this impartiality: abstention and challenge.

Abstention

Abstention is an obligation of every judge or magistrate to recuse themselves from a case due to potential conflicts of interest. This involves promptly disclosing any grounds for disqualification to the relevant Section or Division of the court. The competent authority then decides whether the judge should abstain. If the abstention is approved, the proceedings are transferred to a replacement judge.

Challenge

A challenge is a request by an interested party to remove a specific judge or magistrate from a case due to potential bias. This request must be based on valid grounds for objection. The challenge can only be applied to formal parties involved in the process.

Grounds for Objection (and Abstention)

  • Relationship with parties or legal representatives up to the fourth degree (parties) or second degree (lawyers/attorneys), or an emotional relationship.
  • Having been accused or charged by any party, regardless of the outcome of the proceedings.
  • Having been disciplined as a result of a complaint by a party.
  • Having intervened in the process, defended, or represented a party.
  • Having pending litigation with any party or having a direct or indirect interest in the process.
  • Having a close friendship or enmity with any party.
  • Having participated in an investigation or in the first instance of the process.
  • Being or having been a party subject of the judge.

Procedure for Challenge

  1. Submission of a written challenge outlining the cause and prima facie evidence.
  2. Transfer of the written challenge to other parties for their response (adherence or opposition).
  3. Transfer of the challenge to the recused judge for their report.
  4. If the challenge is admissible and the grounds are accepted, the designated instructor resolves the incident.
  5. If the grounds are not accepted, the instructor decides on the proposed evidence and sends the proceedings to the competent court.
  6. The court consults with the relevant parties and resolves the challenge, with no appeal against the decision.

Independence from Superiors and Governing Bodies

Two guarantees safeguard judicial independence:

Tenure

Judges and magistrates cannot be dismissed, suspended, transferred, or retired except for specific reasons and safeguards outlined in the LOPJ (Law of Judicial Power). These reasons include resignation, loss of nationality, severe disciplinary action, imprisonment for intentional crime, disability, and retirement. Temporary suspension is possible under specific circumstances.

Prohibition of Influence

Judicial independence is absolute for every court. Superiors cannot influence a judge’s handling of a case.

Submission to the Law

Judges and magistrates are subject only to the rule of law. This ensures equality among citizens and predictability in judgments. This submission applies to all positive law and the entire legal system.