You are currently viewing La recusación, una facultad para garantizar la imparcialidad

Recusal, a power to ensure impartiality

When one or both parties involved in a legal proceeding feel that a judge or member of the collegiate tribunal is biased, the law offers them the power to request that such person be removed from his or her functions in the case. Only the essential parties to the proceeding may avail themselves of this remedy, i.e. the plaintiff and the defendant in the case.

The term recusation is derived from the Latin word recusatio which means to refuse or withhold consent to something. It can be requested at any stage of the legal process and is applied when any of the parties considers that a member of a court or a prosecutor is not capable of being impartial in the case.

These are some of the main reasons for a challenge:

  • That the judge is a relative, compadre, friend, enemy, debtor or creditor of any of the parties.
  • That the judge or member of the tribunal has received gifts from any of the parties.
  • That the judge has been a plaintiff for any of the parties involved or has prejudged before hearing the case.

The request for recusal is admissible when the judge or member of the court has not disqualified himself or herself. of being involved in the grounds and is still involved in the legal process. In the event that the person being challenged does not accept the termination of the case, his or her superior must be informed by means of an explanatory report.

It should be noted that a challenge alone does not suspend the course of the main legal proceedings. When the recusal is declared legal, the judge or member of the court must leave the case and loses the competence of the case. If the recusal is accepted, the proceeding is transferred to the next judge in number within a short period of time. Upon rejection of the challenge, the case is passed to a competent judge who conducts a hearing to decide on the case. While the validity of the recusal is being decided, the competencies of the recused judge do not stop. When a recusal is declared inadmissible, the appellant is liable to pay costs and fines. The decision cannot be appealed again in this legal scenario.

It is important to note that when any judge or member of the court feels that his or her judgment has been compromised. For a variety of reasons, the law provides them with the remedy of excusal or disqualification that allows them to disregard the legal procedure when they consider that their impartiality is doubtful.

In addition, there are limits to the number of recusal requests.For example, the Venezuelan Code of Criminal Procedure establishes a maximum of three (3) requests during the course of a proceeding. This in order to avoid delaying maneuvers by the parties.

It is also important to know that there is also the figure of the judge's trespass.In criminal matters, this is not accepted in almost any legislation. Since it consists in that the parties, in spite of knowing that there is one of the causes for the judge to inhibit himself from the case, ask him that due to his professional background and deep knowledge he can settle the controversy raised by the parties.

Lack of impartiality in a judge or person with decision-making power in the legal case. is a serious attack on freedom and justice, which may entail serious consequences, since it involves the constitutional guarantees of third parties.

At Alan Aldana & Abogados, we exalt the figure of impartiality and independence that the judge must have, personified with the Lady of Justice as the only one who can maintain the balance between truth and justice.

Sources consulted