Grounds for the Recusal of a Judge

The writing of this brief article was prompted by an incident related to my legal practice. A client was interested to know if he/we could recuse a judge. To my response that this issue is decided/would be decided by the very judge before whom we file this motion (the case concerned a 1st instance dispute in the civil chamber of a city court), the client's reaction to my answer was an "astonished face." I use this introduction to simply explain the grounds for recusal and also to express my position as a lawyer who believes that society is already prepared for possible changes (I should also specify here that the grounds for recusal will apply only to the hearing of civil cases in the first instance);

"A judge is independent in his/her activity and obeys only the Constitution of Georgia and the law." In case No. as-932-872-2017 (October 17, 2017), the Cassation Chamber explained: "Regarding the European Convention on the Protection of Human Rights and Fundamental Freedoms, Article 6 of which regulates the principle of a fair trial. According to the case law of the European Court, this provision of the Convention is subject to broad interpretation and inherently includes not only an impartial hearing of the case but also its fair resolution. This in itself implies that the administration of justice must not bear a formal character; rather, the purpose of legal proceedings is oriented towards the effective and real protection of the violated right, which indicates an exhaustive resolution of the issue by the national court, and not legal proceedings of a formal nature that do not result in the elimination of the dispute (Supreme Court of Georgia No. as-302-285-2017, 16.06.2017)";

Any ruling or decision issued by the court must be based on the law and the Constitution. As for this provision, it is subject to broad interpretation, which means that the law must not become an obstacle for a party if their right has been violated. The purpose of the law is not for the court to refuse the acceptance of a lawsuit/issuance of a decision/recusal of a judge from a formal point of view; the court should do so only if it can restore the claim or the disputed right through a better means. The court hears a dispute not only because the law obliges it to do so, but also to ensure the right of anyone to appeal to the court;

The role of the court is not and cannot be expressed by indicating what evidence the plaintiff and/or defendant should present, or what factual circumstances a party should point out—that is not the court's job. The court's job is to evaluate all the evidence presented by both parties and make a decision based on that (with the exception of cases concerning children's rights, family cases, etc.), because "for the court, no evidence has a predetermined overriding value." First and foremost, a party wishing to recuse a judge must apply to the hearing judge/court and choose one of the grounds specified in Article 31 of the Civil Procedure Code, namely (we are not touching upon the issue of a judge's self-recusal), a judge may not hear a case or participate in the hearing of a case if they:
a) Are themselves a party in this case, or share common rights or obligations with any party (this issue is subject to broad interpretation because, for example, there are about 20 banks in total in Georgia; accordingly, if a judge has a loan in a bank, and that bank is litigating against a borrower, and this dispute is being handled by the same judge—is this a ground for recusal? According to current practice, this is not considered an objective reason for recusal because the banking sector is not infinitely large, and this has no influence on the judge; whether this is a correct practice is another issue);
b) Participated in previous hearings of this case as a witness, expert, specialist, interpreter, representative, or secretary of the court session (I think the purpose of the law is easy to understand here);
c) Is a relative of a party or their representative (spouse; fiancé(e); direct line relatives; sibling; nephews and nieces; parents' siblings; in-laws; persons connected by long-term family relations);
d) Is personally, directly or indirectly interested in the outcome of the case, or if there is another circumstance that casts doubt on their impartiality (this article is the most frequently applied and there is no established specific practice for it; everything depends on the existence of factual circumstances that must be corroborated by corresponding evidence. Moreover, the norm is indefinite, and "doubt" cannot be a strictly legislative term because doubt is a matter of assessment and not a fact);
e) Acted as a mediator in the same case or in another case substantially connected to it (this amendment was implemented in 2019 following the adoption of the respective mediation law);

If a person wishes to recuse a judge, the first issue is to indicate the ground that gives them this means—namely, a specific norm or factual circumstance present (a mutual friend on Facebook and/or Facebook friendship is not a ground for recusal, just as, for example, being godparents, university classmates, neighbors, etc. The grounds for recusal are exhaustive, though in some cases the court protects itself and declares in advance, for example, about a godparent relationship, since whether this connection constitutes kinship under the law is a separate question). Regarding recusal, the first important issue is that a judge must self-recuse if grounds for recusal are present; the second issue is when a party applies to the court. When a party applies to the court to recuse a judge, it must be in written form, well-reasoned, and made during the preparation of the case for preliminary judicial hearing (Article 33 of the Civil Procedure Code);

After the party has applied to the court regarding the recusal, the court has the right to hear the party, and subsequently, the judge issues a ruling on this either on the spot and/or in the deliberation room (Article 34, Parts 1 and 2 of the Civil Procedure Code). Now, the most interesting part may be exactly during the decision on recusal because:
If the recusal is declared against a judge who hears the case alone, the issue of recusal is decided by that judge.
In case of self-recusal, the judge transfers the case to the chairman of the court, who then assigns it to another judge for a hearing;

To put it simply, a party that has a "doubt" that there are grounds for recusing a judge and files a motion regarding this before the judge—that very judge decides whether to recuse themselves from the case. To simplify even further: the person who is supposed to hear your case and did not self-recuse, you must prove to that same person that there is a ground for recusal, and the decision is again made by this same judge. At first glance, the provision seems quite strange, but since it is presumed that a judge is independent and objective, how fully possible is "objectivity" when the person who did not step away from the case (and you are asking them to step away) is the one to objectively decide whether to recuse themselves?;

A judge must ensure that their conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession, and litigants in the impartiality of the judge and of the judiciary (Bangalore Principles of Judicial Conduct). While performing judicial duties, a judge must be free from any preconceived ideas or bias. They must avoid conduct that participants in the process or the public might perceive as a preconceived opinion (Rules of Judicial Ethics of Georgia). These provisions limit the judge from their own "self"; that is, a judge, who must be the guarantor of legality and justice, must serve their profession in a manner that excludes any preconceived notion from the parties. A preconceived notion can be an evaluative category;

Let us return again to the Bangalore Principles:
Article 2.5. A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where:
Article 2.5.1. The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;

When administering justice, a judge is independent and makes decisions solely in accordance with the law. This provision binds the judge; but at the same time, if a party casts doubt on this through written evidence, regardless of whether the judge has this sense of objectivity—should the judge recuse themselves?

Or, for example, refusal to accept a lawsuit, when the judge points out without a hearing which "legal norm they consider" applicable and/or indicates a different basis for the claim in advance—is this a ground for recusing the judge? (Despite the fact that the established principle in law, jura novit curia ("the court knows the law"), is reflected in numerous decisions of the cassation court; among many from a practical standpoint, see Supreme Court of Georgia rulings: No. as-1170-1125-2016, June 13, 2017; No. as-877-825-2010, December 28, 2010; as well as the Supreme Court Grand Chamber decision No. as-664-635-2016, March 2, 2017);

During the recusal of a judge, the main thing is that the recusal serves the purposes of administering justice; and a refusal to recuse from the judge must not merely serve to confirm that, despite the motion filed and/or the refusal issued by them, they will still be able to impartially hear the case, because "a judge must ensure that their conduct is impeccable in the eyes of a reasonable observer." The facts that a party might provide to the court so that the judge recuses themselves must serve the purpose that "the administration of justice is more important than the recusal or the resolution of the non-recusal issue" and its consequences; because a "decision" that lacks trust in the judge will always leave/cause harm to justice;

Now let us return to the issue of who should hear the refusal of a judge who believes they should not recuse themselves from the case. The answer to this is given by Article 36 of the Civil Procedure Code, which states that: "A court ruling may be appealed along with the court decision, according to the rules established by Articles 377 and 404." This means that prior to the adoption of a court decision, the party does not have the right—I repeat, does not have the right—to appeal this ruling of the judge; meaning, a party does not have the right to appeal the judge's ruling to another judge, and it must absolutely be appealed along with the final decision. It is also an interesting point that scientific interpretations related to an important legal issue for the case constitute grounds for bias (BVerfGE 98, 134; BVerfGE 102, 122; BGH NJW 2002, 2396);

As for Articles 377 and 404, this already defines the scope of appellate and cassation review during the decision phase. Furthermore, if a party has a reasonable doubt or even evidence of grounds for recusal, the party has no statutory means right then (for the very purposes of justice) to recuse the judge, and they are left relying solely on a higher court, which might become a subject of review only years later;

Looking at this issue solely through the legislative provision is not beneficial, because the presumed goal of the legislator was precisely swift justice when this provision appeared in this form: a party has the right to move for recusal, but it is also presumed that the judge is independent and, accordingly, they should decide whether to recuse themselves. But is the goal of justice broader?
That is, overall, the goal is to increase public trust in the court. Accordingly, how necessary is it that there be a right for a party in a first-instance court to have the judge's ruling refusing recusal heard by a different judge of the same court?
Since the entire purpose of the court is its independence, and if we have a 2-stage system for reviewing the judge's own decision, why shouldn't there be a means for such a minor-stage review right in the 1st instance?
For recusal is a much more important issue and differs from smaller-scale issues such as the evaluation of evidence, questioning of a witness, or other such matters, which do not as fundamentally alter the plaintiff's or defendant's relationship/trust towards the court itself;

Since the court is not the property solely of a judge or a lawyer to be perceived in isolation, and since the court obeys only the law—but this law is adopted on the basis of justice—society must have a guaranteed means to appeal the refusal of a recusal motion quickly and independently. Because otherwise, the primary goal of justice, "fairness," or the absence of questions regarding the judge's activities, will inevitably remain at the same level;

As for a solution, or the potential for abuse by any party if granted such a right—yes, there could be many solutions. These include appointing a specialized judge solely for these issues, or the option to send it to an appellate judge, or a legitimate restriction: in the event of one motion being denied, the inadmissibility of filing it a second time, etc. However, what I know for certain, as a lawyer, is that a legislative provision never automatically equates to justice;