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
SUMMARY

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 judge disqualification in court-administrative procedure leads to a conclusion that there are some... (see full summary)

 
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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.

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