Can a judge be disqualified from deciding a legal dispute on the grounds of bias if they have delivered a judgment which is unfavourable to the plaintiff in another case? Can a court be biased if a plaintiff has challenged a previous decision thereof before the European Court of Human Rights (ECtHR)? This article answers these questions by analysing a recent Supreme Court judgment
The plaintiff brought an application for the disqualification of the judge acting in the case and the Debrecen Regional Court as a whole in an administrative litigation pending before the regional court.
In his application, the plaintiff claimed that the judge acting in the case and the legal predecessor of the Debrecen Regional Court, the Debrecen Administrative and Labour Court, had breached procedural and substantive rules in a previous litigation when assessing the registration of a right in the land register relating to the present case.
Further, the plaintiff referred to an ongoing case before the ECtHR seated in Strasbourg, which he had initiated, over which the judge who had delivered the disputed first-instance decision was presiding.
According to the plaintiff, based on the above, the judges of the Debrecen Regional Court in the present case were biased against him and were defending the defendant.
The judges of the Debrecen Regional Court declared that they were not biased in the case at hand.
The Supreme Court, acting on the plaintiff's motion for disqualification, explained that in order to ensure the right to a lawful (ie, impartial) judge, the Code of Administrative Procedure (CAP),(2) which applied in the present case, sets out the absolute and relative grounds for disqualification of an acting judge or court. These grounds are similar to those provided for in the rules on disqualification set out in the Code of Civil Procedure (CCP).(3)
In his application for disqualification, the plaintiff referred to a relative ground for disqualification, arguing that – based on previous decisions of the judge and court acting in the case, which were unfavourable to the plaintiff – they could not be expected to assess the case objectively.
According to the Supreme Court, the lack of impartiality or bias of an acting judge or all of the judges of the regional court acting in an administrative case can be established only on the basis of specific facts and circumstances which make the impartiality obvious to anyone.
However, the plaintiff's subjective opinion that the court had previously delivered an unlawful decision which was unfavourable to him could not be considered such a ground.
In the Supreme Court's view, an unfavourable decision by certain judges of the Debrecen Regional Court in another case involving the plaintiff did not in itself establish a ground for the bias of the acting court.
Moreover, in the absence of any other specific facts, the acting court could not be deemed to be biased solely on the ground that the plaintiff had initiated a procedure before the ECtHR.
In view of the above, the Supreme Court dismissed the plaintiff's application for disqualification.
Considering that the CAP rules on disqualification which applied in the present case are substantially identical to those of the CCP, it is worth analysing the decision in the present case on the basis of the CCP and the judicial practice of the former CCP.(4)
The CCP sets out absolute and relative grounds for the disqualification of a judge.
While absolute grounds are regulated exhaustively and have a non-discretionary nature (eg, a judge or their relative having a direct interest in the legal dispute, in which case it is clear that the judge cannot act in the case), relative grounds for disqualification are open ended(5) and can be subject to legal discretion.
Bias as a relative ground for disqualification
In domestic legal literature, relative grounds for disqualification are referred to collectively as "bias". Unlike absolute grounds for disqualification, bias always requires an individual assessment of whether the person can act as a judge in the litigation based on all of the circumstances of the case.
Based on Hungarian judicial practice, unless a judge declares themselves biased, in which case they must be disqualified from administering the legal dispute with immediate effect, the bias of a judge or court can usually be established only in exceptional cases.
Previous unfavourable judicial decision
On the basis of judicial practice, the bias of an acting judge based on their previous judgments usually cannot be established in the absence of further circumstances which cast doubt on their impartiality.
According to domestic case law, a possible legal error or delayed administration(6) in a previous case cannot in itself be a ground for disqualification for bias in a subsequent proceeding.
In a previous decision, the Supreme Court concluded that the incorrect imposition of the burden of proof also does not result in the bias of an acting judge.(7)
According to Supreme Court case law, a judge cannot be disqualified solely because they have already judged several cases involving one party which was unsuccessful or because their judgment has been overturned by a court of appeal.(8)
Similarly, the bias of an entire court also cannot be established on the basis that one of the parties has previously been unsuccessful in litigation before the same court.(9)
Therefore, according to judicial practice, some additional facts are required to establish bias – previous unfavourable judicial decisions are not sufficient to establish a lack of impartiality on the part of either a judge or a court.
Litigation with the court
A further question arises as to whether an entire court can be biased if a party is involved in litigation with such court in another case.
According to judicial practice, the fact that a party is involved in litigation with a particular court (eg, for compensation for damage caused by an unlawful judicial act) is a ground for disqualification of that court in respect of that particular legal dispute.
Consequently, if a party brought an action for damages against the Central District Court of Pest (CDCP), the whole CDCP would be considered biased in that procedure and the procedure would have to be conducted before another court.
However, the fact that the injured party (as the plaintiff) is involved in litigation with the CDCP (as the defendant) for damages does not justify a finding of bias on the part of the CDCP in a lawsuit between the injured party and a third party.(10)
In the present case, the plaintiff was not directly in litigation with the court, but rather with Hungary, as proceedings before the ECtHR can be initiated against a state signatory to the European Convention on Human Rights (ECHR) for a violation of fundamental human rights.
If the plaintiff's position had been accepted, parties which start proceedings against Hungary before the ECtHR would be able to rely on the bias of every state organ, which would hinder the sound administration of justice.
The Supreme Court's decision clearly confirms the previous judicial practice, according to which the bias of a judge or court can be established only in exceptional cases where specific facts clearly prevent an objective assessment of the case.
The sole fact that a judge has previously made an unfavourable ruling against a party, in the absence of further specific circumstances which cast doubt on the judge's impartiality, cannot be considered a ground for disqualification in itself.
Similarly, an entire court cannot be disqualified on the sole ground that it has delivered a judgment which was unfavourable to one of the parties in earlier proceedings.
Finally, the mere fact that a party initiates legal proceedings against a particular court does not in itself establish the court's partiality in other cases. This is especially not the case where the party does not even sue the court itself but instead starts proceedings against Hungary as a contracting state to the ECHR before the ECtHR.
(2) Act I of 2017 on the Code of Administrative Court Procedure.
(3) Act CXXX of 2016 on the Code of Civil Procedure.
(4) Act III of 1952 on the Civil Procedure.
(5) Article 12(f) of the CCP provides that a person cannot act as a judge if they cannot be expected to assess the matter objectively for any reason.
(6) Supreme Court Decision Pk. 21 174/1991.
(7) Budapest Court of Appeal Decision Pkk.4. 25.738/2007/2.
(8) Supreme Court Decision Pkk.III.24.665/2007/2.
(9) Judicial Decision 1977.11.519.
(10) Commentary on Act CXXX of 2016 on the Code of Civil Procedure.
© International Law Firms 2016-2017 All rights reserved.
3, Montée de Clausen, L - 1343 Luxembourg
Luxembourg Commercial Register Number F-9208.