Romanian, Polish and German judge disqualification in disputes of administrative litigation

• Author: Catalin Silviu Sararu - Maria Grzymislawska Cybulska - Kajetan Górny
• Position: Department of Law, Bucharest University of Economic Studies, Romania - Ph.D., An associate judge in the Voivodship Administrative Court in Poznan, Poland - Faculty of Law and Administration, the University of Zielona Góra, Poland
• Pages: 6-25

STUDIES AND COMMENTS

Romanian, Polish and German judge disqualification

in disputes of administrative litigation

Associate professor Cătălin-Silviu SĂRARU

1

Ph.D. Maria GRZYMISŁAWSKA-CYBULSKA

2

Ph.D. Kajetan GÓRNY

3

Abstract

The subject matter of this article is to compare the regulations of Romanian, Polish

and German guarantees of the right to an impartial court within the context of a judge

disqualification in a court-administrative proceeding. The comparison of Romanian, Polish

and German regulations pertaining to ju dge disqualification in court-administrative

procedure leads to a conclusion that there are some significant distinctions among those

regulations. It is worth noticing that the Polish court-administrative procedure is the only

one, out of the three analyses system s, which could be featured as fully autonomous. At the

same time both the Romanian as well as the German regulations depend on a reference to

their civil procedures. On a side note, a reference to the provisions of the civil procedure

also existed in Poland, until 2004, when the current Law on Proceedings Before

Administrative Courts entered into force. All three legal systems underline the importance of

the regulations on the judge’s professiona l status within the context of providing conditions

for impartial adjudication.

Keywords: judge disqualification, administrative litigation, impartiality of judges,

comparative administrative law.

JEL Classification: K23, K41

1. Introduction

The impartiality is viewed as a feature of the court which is particularly

important for the right to court guarantee. All other procedural guarantees and

principles regarding court procedure seem less significant when a judge from the

start has a preconception of how to decide the case. Therefore, there are mechanisms

put in place with the aim of actualising the right to an impartial court. The subject

matter of this article is to compare the regulations of Romanian, Polish and German

1

Cătălin-Silviu Săraru - Department of Law, Bucharest University of Economic Studies, Romania,

catalinsararu@yahoo.com.

2

Maria Grzymisławska-Cybulska - Ph.D., An associate judge in the Voivodship Administrative Court

in Poznań, Poland, mgrzymislawska-cybulska@swps.edu.pl.

3

Kajetan Górny - Faculty of Law and Administration, the University of Zielona Góra, Poland,

kancelaria@adwokat-gorny.pl.

Juridical Tribune Volume 7, Special Issue, October 2017 7

guarantees of the right to an impartial court within the context of a judge

disqualification in a court-administrative proceeding. When administrative courts as

those deciding about the relationships between the state and an individual, then the

requirement for their impartiality is of even more particular significance. Therefore,

the research focused on the Romanian, Polish and German institutions of judge

disqualification in their respective court-administrative procedures. Our choice of

said systems was based on their development history, having very complex historical

backgrounds stemming from the state-building processes and European standards to

the right to court.

2. Romanian judge disqualification in disputes of administrative

litigation

2.1 Introductory considerations

In Romania, administrative litigations are judged by the administrative

contentious sections, organized at the tribunals, the courts of appeal and the High

Court of Cassation and Justice. Disputes are judged under Law no. 554/2004 of

administrative contentious

4

. The provisions of Law no. 554/2004 shall be

complemented with the provisions of the Civil Code and those of the Civil Procedure

Code to the extent that they are not incompatible with the specific nature of the

authority relationships between public authorities, on the one hand, and the persons

aggrieved in their legitimate rights or interest, on the other.

The justice-making activity in a state of law must be based on a set of

principles that guarantee the establishment of truth and observance of the law in all

cases subject to judgment

5

, thus ensuring a fair trial. These principles include the

independence and impartiality of judges.

2.2 Independence and impartiality of judges in the Romanian

Constitution

In the trial, judges are independent of other state bodies and even their

hierarchically superior bodies, being subject only to the law, whose provisions are

called upon to respect them. The Romanian Constitution

6

enshrined this principle in

art. 124 par. (3), according to which the judges are independent and subject only to

4

Published in the Official Gazette, Part I no. 1154 of 07 December 2004, as subsequently amended.

5

See Ioan Leş, Noul Cod d e procedură civilă. Comentariu pe articole art. 1-1133 (New Code o f Civil

Procedure. Comment on articles art. 1-1133), C.H. Beck Publishing House, Bucharest, 2013, p. 72.

6

The Romanian Constitution in force was adopted by the Constituent Assembly on 21 November 1991

and was approved by the national referendum held on 8 December 1991 (the date on which it entered

into force). The 1991 Constitution was subject to a review process by Law no. 429/2003. The Law on

Constitutional Review was adopted by the Parliament on 18 September 2003 and was approved by

the referendum on 18 and 19 October 2003. Following the Revision Act, the Romanian Constitution

was republished in the Official Gazette no. 767 of 31 October 2003.