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.

Rendering the decision

The judge will announce a recess of the court session and to issue its decision. During the recess session parties will leave the court room.

 Decision

The first instance court will issue one of the following decisions.  

• satisfy the claim’s demand;
• satisfy part of the claim’s demand and dismiss the rest of it; or
• dismiss the whole claim.

Announcing the decision and closing the court session

The judge will announce the decision, explain the other essential matters if necessary, and close the court session. The decision shall come into force immediately upon presentation.

The decision will be written within 7 days after its issuance and the judge will sign it. After the issuance of written decision and parties will come to court and get the decision within 14 days.  

Litigants, third parties, their representatives or defense lawyers may file a complaint of appeal to the courts within 14 days after receiving the decision of the court of first instance. 

Continuing our look at general procedures for trying a case before court in Mongolia.

2.2 Examination of documentary and real evidence

A Court shall examine evidence and documents collected in the case. The written evidence which it considers necessary and requested by participants and judge will be read out at the requested page or section to the court. 

2.3 Asking questions

The judge will ask questions from both parties and the claimant and respondent will ask questions to each other and answer each other’s questions.

2.4 Examination of a witness

The judge shall bring witnesses into the courtroom and warn him/her of his duties and liabilities to be imposed on him/her and to sign the minutes of court session on this. Each witness is questioned separately. The judge, claimant and respondent will each ask questions from the witness.  

A witness who has not yet testified may not be in the Court room during the process of the court session. A witness who has been questioned remains in the Court room unless the judge permits him/her to leave.

A Court may conduct preliminary testimony of a witness or may reexamine the witness.

2.5 Reading out conclusions of an expert

The conclusions of an expert are read out at the court session. An expert will explain his/her conclusions at the court session. Questions may then be put to the expert. In the event of the expert’s conclusions being doubtful or unclear or contradictory, the court will order another expert to provide conclusions.

2.6 Additional clarifications from persons taking part in the case

After examining the evidence, the judge asks the litigants whether they have issues that need additional clarification. In this event, parties may ask questions and answer and explain more about their arguments which have not been presented.

 Also, both parties will present final conclusions of their sides.

The case proceeding begins with a report from the judge on a case. The judge then asks whether the plaintiff persists in his/her demands/claim, whether the defendant admits the plaintiff’s demands/claim, and whether the parties wish to conclude a settlement. The plaintiff may withdraw his/her claim without obtaining permission from defendant. A defendant may admit the plaintiff’s claim in whole or in part or litigants may agree to settlement before the Court issues its decision.

If both parties settled before the hearing and if settlement does not violate rights, freedom and interests of other persons protected by law and/or obstruct the law, the Court may issue a decision confirming settlement between litigants and dismissing the case.

The Court decision shall state that the Court costs and the state stamp duty are to be paid by a plaintiff if he/she withdraws his/her claim or by a defendant if he/she admits and accepts the claim’s demand or is to be divided between litigants if they have concluded settlement.

If both parties would not be settled before the hearing parties will proceed to the main litigation.

2.1 Oral arguments between litigants

Before the oral arguments of the litigants, the judge will remind them of their rights and duties and advise them to give truthful explanations.

First, the plaintiff will explain the facts and introduce the claim and legal grounds of claim. After that, the defendant will present their refusal to accept the claim’s demand and explain the legal grounds of refusal.

Again, the claimant must prove the demand of the claim, disputed events and evidence, guilt of the defendant and grounds for the denial of the defendant’s refusal to accept/acknowledge the claim. Afterwards, defendant side will present the grounds and evidence for refusal to admit the claim’s demand. Debate between claimant and defendant will continue 3-4 times depending on the case.

A practical review of how court proceedings are conducted.

Firstly, the judge opens the court session, announces the case which is to be heard and gives permission to participants in the Court hall to sit down.

Then the secretary of the court will check attendance of the court session, those who are participating in the trial and will report to the judge which of the persons summoned for the case have appeared. If the claimant or respondent have not appeared in the court hearing, the secretary will check whether writs were served on the person who have not appeared, and reason to causes of their non-appearance.

After that, the court will check the identity of the participants appearing and the authorizations of officials and representatives.

Then, the judge announces the composition/components of the Court and introduces such as secretary of the court session, the interpreter, any experts and explains to all the parties, third parties and their attorneys and representatives who are taking part in the case and their right to withdraw any components of the Court. The judge also explains to the parties taking part in the case their rights and duties specified in law.

Afterwards, the judge asks if there are any requests from the parties. If any of parties has a request (such as to postpone the hearing etc), they will introduce it to the court and the judge will decide on it immediately. With respect to compiling new evidence and on all other questions connected with the case, everything will be decided by a judge immediately after hearing the opinions/requests of the parties taking part in the case.

The parties may present additional explanations and new evidence significant to the case resolution during the court session; if the court considers them to be important to the case and accepts them for further investigation, the judge may adjourn the court session.