Instytucja "Iudex suspectus" w świetle orzecznictwa sądu najwyższego i sądów powszechnych

The right of a case to be heard by an impartial judge is one of the basic elements of the court independence. The Code of Civil Procedure [CCP] anticipates two modes of excluding a judge from adjudicating in a given case. The former, regulated in Article 48 CCP occurs when a judge is absolutely excluded from hearing a case by operation of the Act (i.e. iudex inhabilis). The latter, in the judicature referred to as iudex suspectus, is of a relative nature. As pursuant to the provision of Article 49 CCP the court, notwithstanding the grounds listed in Article 48, the court shall exclude a judge at the judge’s own request or at the request of a party, if there are circumstances that could lead to reasonable doubts as to the impartiality of the judge in a given case. The right to demand the exclusion of a judge is a constitutional guarantee of the right to an impartial court. As the rules of excluding a judge facilitate building the social trust for the system of justice. The provision of Article 49 CCP was issued for the benefit of the system of justice, which could suffer if there were even appearances of the personal engagement or bias of an adjudicating judge. The objective of the institution of the exclusion of a judge is the provision of optimum conditions for the operation of the system of justice, excluding any doubt as to the neutrality of an adjudicating judge. The matter concerns not only eliminating the doubts of the parties but also the doubts of the very judge, who, knowing one of the parties, may worry that his decision will not be free from some subjectivity.