13 May 2021

Can a judge be disqualified from deciding the legal dispute on the grounds of bias if he has delivered a judgment unfavourable to the plaintiff in another case? Can a court be biased if the plaintiff has "challenged" a previous decision of the court before the European Court of Human Rights? In this article, we answer these questions by analysing a recent judgment of the Hungarian Supreme Court.

1. Facts

In the present case, the plaintiff ("Plaintiff") brought an application for the disqualification of the judge acting in the case and the Regional Court as a whole in an administrative litigation pending before the Debrecen Regional Court ("Regional Court") .

In his application, the Plaintiff claimed that the judge acting in the case and the legal predecessor of the Regional Court, the Debrecen Administrative and Labour Court, had also breached procedural and substantive rules in a previous litigation, when assessing the registration of a right in the land register concerned by the present case.

Furthermore, the Plaintiff has referred to an ongoing case in front of the European Court of Human Rights seated in Strasbourg ("ECtHR"), launched by himself, in which the judge who gave the “attacked” first instance decision was the same one, who acted in the present case.

According to the standpoint of the Plaintiff, on the basis of the above, the judges of the Regional Court in the present case are biased against him and they are defending the Defendant.

The judges of the Regional Court declared that they did not felt themselves biased in the case at hand.

2. Decision of the Supreme Court

The Hungarian Supreme Court, acting on the motion for disqualification of the plaintiff, explained that in order to ensure the right to a lawful, i.e. impartial judge, the Code of Administrative Procedure[1] ("CAP") applicable in the present case, , lays down the absolute and relative grounds for disqualification of the acting judge or court, similarly to the rules on disqualification of the Code of Civil Procedure.

In his application for disqualification, the Plaintiff referred to a relative ground for disqualification, arguing that based on the previous decisions of the judge or court acting in the case, which were unfavourable to the Plaintiff, they may not be expected to assess the case objectively.

According to the Supreme Court, the lack of impartiality or bias of the acting judge or all the judges of the Regional Court acting in administrative cases can only be established on the basis of specific facts and circumstances which make the impartiality obvious to anyone.

However, the subjective opinion of the Plaintiff that the tribunal has previously unlawfully given a decision unfavourable to him cannot be considered as such ground.

In the view of the Supreme Court, an unfavourable decision by certain judges of the Regional Court in other cases of the Plaintiff does not in itself establish a ground for the bias of the acting court.

Moreover, in the absence of any other specific facts, the acting court cannot be biased solely on the ground that the Plaintiff has initiated a procedure before ECHR.

In view of the above, the Supreme Court dismissed the application for disqualification of the Plaintiff.

3. Analysis of the Decision

Considering that the rules on disqualification of the CAP applicable in the present case are substantially identical to the rules on disqualification of Civil Procedure Code[2] ("CCP"), it is worth analysing the decision in the present case on the basis of the CCP and the judicial practice of the former CCP.[3]

The CCP lays down so-called absolute and relative grounds for disqualification of a judge.

While absolute grounds are regulated exhaustively and have a non-discretionary nature (e.g. a judge or his relative having a direct interest in the legal dispute, in which case it is clear that the judge cannot act in the case), relative grounds for disqualification are open-ended[4] and they can be subject of legal discretion.

4. Bias as a relative ground for disqualification

In the domestic legal literature, relative grounds for disqualification are referred to collectively as 'bias' and, unlike absolute grounds for disqualification, in case of bias, it always requires an individual assessment of whether the person can act as a judge in the litigation or not, on the basis of all the circumstances of the case.

Based on Hungarian judicial practice, the starting point is that, apart from the situation, when the judge declares himself biased from its own motion, in which case he must be disqualified from the administering of the legal dispute with immediate effect, the bias of a judge or court usually can be established in only exceptional cases.

5. Previous unfavourable judicial decision

On the basis of judicial practice, the bias of the acting judge due to concerns raised about his previous judgments, in the absence of further circumstance which would cast doubt on his impartiality, usually cannot be established.

According to the domestic case law, a possible legal error or the delayed administration[5] of the judge in a previous case cannot in itself be a ground for disqualification for bias in a subsequent proceeding.

In another decision, the Supreme Court has concluded that the incorrect imposition of the burden of proof also does not result the bias of the acting judge.[6]

According to the case law of the Supreme Court, a judge cannot be disqualified solely because he has already judged in several cases of the party and the party has become the losing party, or if the judge's judgment has been overturned by the Court of Appeal.[7]

Obviously, the bias of the entire court also cannot be established on the basis that one of the parties has previously unsuccessfully litigated before the same court.[8]

Therefore, according to the judicial practice, some additional facts are required to establish bias, and previous unfavourable judicial decisions are not sufficient to establish the lack of impartiality neither in relation to the judge nor in relation to the court.

6. Litigation with the court

A further question arises as to whether the entire court can be biased if a party is in litigation with the court itself in another case.

According to judicial practice, the fact that there is a litigation between a party and the particular court, for example for compensation for damage caused by an unlawful judicial act, is a ground for disqualification of that court in respect of that particular legal dispute.

Consequently, if a party brings an action for damages against the Central District Court of Pest (“CDCP”), the whole CDCP is considered as biased in that procedure and the procedure shall be conducted before another court.

However, the fact that the injured party as plaintiff is in litigation with CDCP as defendant for damages, does not justify the bias of the CDCP in a lawsuit between the injured party and a third party.[9]

It is worth noting that in the present case the plaintiff otherwise was not directly "in litigation" with the court, but with Hungary, as proceedings in front the ECtHR can be initiated against a state signatory to the European Convention on Human Rights for violation of fundamental human rights.

In case the Plaintiffs position was accepted, parties who start proceedings against Hungary in front of the ECtHR could rely on the “bias” of every state organ, which would hinder the sound administration of justice.

7. Summary

The decision of the Hungarian Supreme Court in the present case clearly confirms the previous judicial practice, according to which the bias of a judge or court can only be established in exceptional cases, where there are specific facts that clearly prevent an objective assessment of the case.

The sole fact that the judge had previously made unfavourable rulings against a party, in the absence of further specific circumstances which could cast doubt on the impartiality of the judge, cannot be considered as a ground for disqualification, in itself.

Similarly, an entire court cannot be disqualified on the sole ground that it had given judgments unfavourable to one of the parties in earlier proceedings.

Finally, the mere fact that a party initiates legal proceedings against a particular court, it does not in itself establish the court's partiality in other cases. It is especially not the case, where the party does not even sue the court itself, but it starts proceedings against Hungary as a contracting state to the ECHR, in front of the ECtHR.


[1] Act I of 2017 on the Code of Administrative Court Procedure

[2] Act CXXX of 2016 on the Code of Civil Procedure

[3] Act III. of 1952 on the civil procedure

[4] Article 12 f) of CCP provides that the person cannot act as judge if it cannot be expected from him to assess the matter objectively for any „other reasons”

[5] Decision No. Pk. 21 174/1991. of the Supreme Court

[6] Decision No. Pkk.4. 25.738/2007/2. of the Court of Appeal of Budapest

[7] Decision No. Pkk.III.24.665/2007/2 of the Supreme Court

[8] Judicial Decision No. 1977.11.519

[9] Commentary on the Act CXXX of 2016 on the Code of Civil