Articles 91-93 of the Civil Procedure Law of Mongolia regulate grounds for recusal of a judge, submission of a request for recusal, resolution thereof, and consequences of recusal by a judge. In this blog, we will mention some practical difficulties and issued encountered in judicial recusal.
Firstly, in general a judge is obligated to reach a decision in a matter before it.
When the parties to the case make a motion for recusal of the judge, they usually base the request on issues or concerns which raise doubt as to whether the case can be resolved fairly. In this ground, one of the participants in the case must have provided information with certain facts about the judge being influenced by the other party.
However, according to the court practice, the requests made on this basis are related to the violation of the rights of the participants in the case, the restriction of their rights, and the violation of the case procedure.
In the course of the proceedings, the judge himself/herself manages the proceedings, granting or refusing to grant requests made by the parties to the case on the basis of the law.
There are also cases where withdrawing from a judge on the grounds that refusing to accept the request is considered to be interfering to the process of case review by judge.
On the other hand, in the course of the proceedings, there are cases where the judge gives too much priority to one of the parties involved in the case and makes a decision that is beneficial to that party.
It is very difficult to prove the above-mentioned grounds for recusal of a judge, and in practice, in most cases, even if a request for recusal of a judge is made, the request will be always denied or not accepted.
Another reason for refusing a judge is that lawyers use the tactics of delaying the court hearing and delaying the court processing.
Delays in proceedings and delays in court hearings depend on many factors, but one of them is the delay related to the process of resolving a request to recuse a judge, a panel of judges, or all judges of a given court. 445 cases or 7.8% of cases were delayed due to requests for recusal by judges in civil courts of first instance.