Original scientific paper

https://doi.org/10.30925/zpfsr.40.1.1

ON THE REASONS FOR EXEMPTION AND THE MOTION FOR INCIDENTAL EXEMPTION PROCEDURE

Mihajlo Dika ; Faculty of Law University of Zagreb, Zagreb, Croatia

Abstract

The paper analyses two segments of the institute of disqualifi cation of judges in civil proceedings - the reasons for initiating the incidental disqualifi cation procedure and the issue of an initiative to initiate this procedure. The reasons for the exemption are examing and explained by taking into consideration whether they have the meaning of the so-called absolute or relative reasons for the disqualifi cation. When it comes to the so-called absolute reasons, whose list is exhaustively determined by law, the provisions that regulate certain groups of these reasons, the manner of their determination, the relationship between each other and the structure are reviewed. In connection with the so-called relative reasons, an attempt is made to determine the content and scope of the general clause according to which any circumstance which questions the impartiality of a judge is a reason for disqualifi cation. Furthermore, the paper also addresses subjective and objective circumstances which according to (domestic and comparative) case law and doctrine, could constitute such reason, that is, those that were found not to contain it. The complex of problems concerning the
initiative for the initiation of an incidental disqualifi cation procedure is investigated by taking into account whether this procedure is initiated by an ex offi cio action of the judge, the president of the court as a judge or the president of the court as the body authorized to decide on the disqualifi cation or upon the request of the party. In addition, the type of reason why these initiatives are undertaken is also considered.
By interpreting the relatively obsolete, insuffi ciently determined and mutually uncoordinated norms regulating this problem, the paper offers solutions, which would harmonize these norms with the rights of the parties to an independent and impartial tribunal and a fair trial, hence, rights guaranteed by the Constitution and the Convention. In conclusion, certain solutions are proposed that would improve the
normative basis and the application of this institute.

Keywords

disqualifi cation; absolute reasons: relative reasons; de lege ferenda recommendations

Hrčak ID:

219295

URI

https://hrcak.srce.hr/219295

Publication date:

8.4.2019.

Article data in other languages: german croatian italian

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