| Abstract: | Facts that I realized while writing this diploma thesis about Change of a judge in civil law procedure, is that it’s difficult to concrete actions and to set clear boundaries between lawful, necessary and legitimate intervention of a judge on the one hand, and on the other side the principle of impartiality of the judge. In any case, it is important to realize that the fundamental predisposition or the weight of each judicial decision and independence of the judge is an essential criterion which reflects the overall confidence in the judiciary. Some lawyers even argue that in these cases we are talking about the elementary condition for the lawful and correct decision-making by the court.
Slovenian ZPP knows a disclaimer (iudex suspectus) and exclusion reasons (iudex inhabilis), which are enumerated in the Act. Experts state that judicial independence in its minimum means that the judge in resolving the particular case with bounding only to the law and their conscience, so the individual has no right to assess a judge's suitability for the performance of judicial service, because it would be significantly affecting the rights of a judge. But nevertheless It only has potential in the context of procedural opportunities, such as the right to change the judge who tried to work on his case. It is also important that the right to an independent and impartial judge does not also mean the right to make judges for their own choices.
The judge must in any case be so handled as to leave no pre-formed belief or bias, they need to constantly worry about the process for ensuring the implementation of procedural acts, so as to preclude any reasonable doubt of their impartiality. It is therefore not unreasonable to require the judges and ultimately expect from them to be more self-critical and that they repeatedly asks themselves whether if they work is really held by legal arguments or are they under influence of a hidden bias or prejudice.
In any case it is important that we recognize the reality facts, that the judges are only man of flesh and blood, and that each person has their own ideological and political orientation. However, the judge ratio must always prevail over emotion, because only that judge who is professional authority in his field, can be convincing and make his independence even stronger.
Change of a judge in civil law procedure, like a law institute, is intended for realization of the constitutional right to a fair trial. However our law practice has found their inspiration from the views expressed by the current German judicial decisions, because our material law has roots in Germanic jurisdictions. But anyway if we are somehow closer to Germanic law, we cannot just automatically say that our legal system is orderly and more clean, than on the other hand the legal systems of the Balkan countries. We cannot ignore the fact that less than 25 years ago we were living together in the same country, where we had a unified legal system. Given that the legal institution of changing of a judge is one of the main legal mechanisms to ensure the independence and impartiality of the court, I believe that this institution is the same in all modern legal systems of the world, not only in our country, Germany and Croatia. |
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