Judicial challenge : a case of Iudex in Causa Propria?

Abstract

This study was conducted with the purpose of critically analysing the domestic laws of procedure regulating the institute of judicial challenge, i.e. that procedure by which a sitting member of the judiciary may be asked to recuse himself and forgo hearing and determining a particular case. The primary object of the present work is to consider whether the relevant laws are in conformity with the standards and requirements of the individual's fundamental right to fair trial. Indeed, this paper seeks to set the operative laws of procedure regulating judicial challenge against the standards, corollaries and requirements of fair trial rights, thus enabling the reader to arrive at tangible conclusions as to whether the present state of the law is in conformity with inter alia Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is noteworthy that any conclusions are reached only after careful consideration as to the absence of any practical and effective means of redress or of sufficient guarantees ensuring overall conformity with fair trial rights. Ultimately the academic discussion allows the reader to reach conclusions which are well grounded and which allow for concrete and sober proposals for reform. In fact, given that the purpose of this work is to engender an interest with a view to prompting discussion and reform, this study concludes with suggestions as to how the current status quo may be altered in the interest of the better administration of justice.